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LITTLE,  BROWN  &  CO.'S 

LAW    ADVERTISER. 

112   'WiLSHI£7GT03Sr    STREET,  BOSTOZT. 
MAY,    1855. 


JUDGE     CURTIS'S 

EDITION  OP  THE 

DECISIONS 


SUPREME  COURT  OF  THE  UNITED  STATES, 


Now  in  Press,  and  will  shortly  be  Published,  the  Decisions  of  the 
Supreme  Court  of  the  United  States,  with  Notes  and  a  Digest,  by 
Hon.  Benjamin  R.  Curtis,  one  of  the  Associate  Justices  of  the 
Court.  In  18  volumes  octavo.  Comprising  the  Cases  reported 
by  Dallas,  4  vols.;  Cranch,  9  vols. ;  Wheaton,  12  vols.; 
Peters,  16  vols. ;  Howard,  16  vols. ;  in  all  57  volumes. 


EXTRACT  FROM  THE  PREFACE. 

"  This  work  contains  the  decisions  of  the  Supreme  Court  of  the  United 
States.  The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  been 
printed  by  the  authorized  reporters,  after  correcting  such  errors  of  the  press 
or  of  citation  as  a  careful  examination  of  the  text  has  disclosed. 

"I  have  endeavored  to  give,  in  the  head-notes,  the  substance  of  each  deci- 
sion. They  are  designed  to  show  the  points  decided  by  the  Court,  not  the 
dicta  or  reasonings  of  the  Judges. 

"  The  statements  of  the  cases  have  been  made  as  brief  as  possible.  For 
many  years,  it  has  been  the  habit  of  all  the  Judges  of  this  Court  to  set  forth 
in  their  opinions  the  facts  of  the  cases,  as  the  Court  viewed  them  in  making 
their  decision.  Such  a  statement,  when  complete,  renders  any  other  super- 
fluous. AVhen  not  found  complete,  I  have  not  attempted  to  restate  the  whole 
case,  but  have  supplied,  in  the  report,  such  facts  or  documents  as  seemed  to 
me  to  be  wanting. 


"In  some  cases,  turning  upon  questions,  or  complicated  states  of  fact,  and 
not  involving  any  matter  of  law,  I  have  not  thought  it  necessary  to  encum- 
ber the  ■work  with  detailed  statements  of  evidence  ■which  no  one  •would  find 
it  useful  to  recur  to.     These  instances,  however,  are  fc^w. 

"  To  each  case  is  appended  a  note  referring  to  all  subsequent  decisions  in 
■which  the  case  in  the  text  has  been  mentioned.  It  will  thus  be  easy  to  as- 
certain Avhether  a  decision  has  been  overruled,  doubted,  qualified,  explained, 
or  alfirmed  ;  and  to  sec  what  other  applications  have  been  made  of  the  same 
or  analogous  principles. 

"  The  paging  of  the  authorized  reporters  has  been  preserved  at  the  head 
of  each  case,  and  in  the  margin  of  each  page,  for  convenience  of  reference ; 
the  reporters  being  designated  by  their  initials,  —  1).  for  Dallas,  C.  for 
Cranch,  W.  for  Wheaton,  P.  for  Peters,  H.  for  Howard. 

"It  is  expected  that  all  the  decisions  of  the  Court,  down  to  the  close 
of  the  December  Term,  1854,  will  be  embraced  in  eighteen  volumes.  To 
these  will  be  added  a  Digest  of  all  the  decisions." 


We  ask  attention  to  the  following  approval  by  the  Members  of  the  Su- 
preme Court  of  the  United  States :  — 

"  AVe  approve  the  plan  of  Mr.  Justice  Curtis's  '  Decisions  of  the  Supreme 
Court  of  the  United  States,'  and  believe  that  its  execution  by  him  will  be  of 
much  utility  to  the  legal  profession,  and  to  our  country'." 

EoGER  B.  Taxey,  Chief  Justice.         Peter  V.  Daniel,  Associate  Justice. 
Joiix  McLean,  Associate  Justice.        Samuel  Nelson,  Associate  Justice. 
James  M.  Wayne,  Associate  Justice.  Robert  C.  Grier,  Associate  Justice. 
John  Catron,  Associate  Justice.         J.  A.  Campbell,  Associate  Justice. 

The  Old  Series  of  these  Heports  arc  in  57  volume,  the  Catalogue  price  of 
which  is  S217.50.  This  Edition,  in  18  volumes,  will  be  ollered  to  Subscribers 
at  the  low  price  of  S3  a  volume,  or  854  the  set;  thus  bringing  them  within 
the  means  of  all.  The  volumes  will  be  delivered  as  fast  as  issued,  and  it  is 
intended  that  the  whole  work  shall  be  completed  within  six  months  from  the 
present  date.  Vols.  I.  II.  III.  are  nearly  ready  lor  publication.  Those  wish- 
ing to  subscribe  will  please  send  in  their  names  to  the  Publishers  as  early  as 
possible. 


REPUBLICATION    OF   THE 


ENGLISH   HEPORTS,   IN   EULL. 

BY   LITTLE,    BROWN  &   CO. 

Containing  Reports  of  all  the  Cases  before  the  House  of  Lords,  Privy- 
Council,  the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chan- 
cery, all  the  Common-Law  Courts,  the  Court  of  Criminal  Aj^peal, 
and  tlie  Admiralty  and  Ecclesiastical  Courts. 

The  Publishers  of  this  Series  of  the  English  Law  and  Equity  Reports  in- 
vite the  attention  of  the  Profession  to  the  tbllowing  statements,  showing  the 
advantages  which  they  possess  over  all  others:  — 

I.  They  are  the  only  reprints  which  furnish  all  the  cases  decided  in  their 
respective  courts.     The  third  volume  of  Ellis  and  Blackburn,  issued  from 


the  Philadelphia  press,  professes  to  give  the  decisions  of  the  Queen's  Bench 
in  Hilary,  Easter,  and  Trinity  Terms,  1854;  but  it  contains  only  eighty- 
six  cases  out  of  one  hundred  and  twexty-one,  all  of  which  ivill  be  found 
in  the  Law  and  Equity  Reports.  Many  of  the  cases  omitted  are  among  the 
most  important  decided  in  that  period.  The  Philadelphia  reprint  of  the  14th 
Common  )icx\(i\\,  purports  to  contain  the  cases  from  Michaelmas  Term,  1853, 
to  Easter  Term,  1854,  inclusive ;  but  is  gives  only  sixty  cases  out  of  eighty- 
three.  For  the  remaining  cases,  the  American  lawyer  must  look  to  the  Law 
and  Equity  Reports.  The  Exchequer  Reports,  in  like  manner,  will  be  found 
incomplete.  And  this  incompleteness  of  the  Philadelphia  series  increases 
from  year  to  year ;  for  the  proportion  of  cases  omitted  is  much  greater  in 
the  recent  volumes  than  in  the  j^revious  ones. 

IL  The  character  of  the  Law  and  Equity  Reports  will  bear  the  most  rigid 
comparison  with  the  Philadelphia  series.  They  have  a  much  larger  circula- 
tion in  England,  and  are  as  freely  and  confidently  cited.  The  Law  Journal 
and  Jurist  are  cited  833  times  in  "  Shelford  on  Railways;"  while  Meeson 
and  Welsley,  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  455  times.  In  "Hill  on  Trustees,"  the  Law  Joun- 
nal.  Jurist,  and  Law  and  Equity  Reports  are  cited  846  times.  In  "  Saun- 
ders's Pleading  and  Evidence,"  the  Law  Journal  and  Jurist  are  cited  1871 
times ;  while  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  1444  times.  And  an  examination  of  any  recent 
English  law-book  tvill  show  the  same  high  appreciation  of  the  p)id)lications  from 
tvhich  the  Law  and  Equity  Reports  are  printed. 

III.  In  these  Reports,  the  decisions  are  generally  given  sevei'al  months 
In  advance  of  the  Philadelphia  reprints.  Even  in  the  volumes  ichich  are 
announced  as  in  advance  of  our  reports,  it  tcill  be  found  that  a  large  propor- 
tion of  the  cases  had  become  familiar  to  the  profession,  through  the  Law  and 
Equity  Reports,  before  their  publication  at  Philadelphia.  But  by  the  reduc- 
tion of  matter  which  the  omission  of  the  Chancery  cases  In  the  inferior  courts 
will  cause,  we  shall  be  able  hereafter  to  publish  the  common-law  cases  seve- 
ral months  earlier  than  heretofore.  The  28th  volume,  containing  the  cases 
in  Michaelmas  Term,  1854,  and  a  part  of  Hilary  Term,  1855,  will  be  pub- 
lished in  July  next,  embracing  the  cases  of  the  first  part  of  4th  Ellis  and 
Blackbnrn  ;  Part  Second  of  15  Common  Bench,  and  Part  Third  of  1 0th  Ex- 
chequer Reports,  and  being  nearly  a  year  in  advance  of  their  publication  in 
the  Philadelphia  series.  Thereafter,  tee  intend  to  publish  the  cases  of  each 
term  icithin  four  months  from  the  rising  of  the  courts. 

IV.  In  addition  to  the  complete  reports  of  the  Common  Law  Courts,  this 
series  will  furnish  the  cases  before  the  House  of  Lords,  the  Privy  Council, 
the  ZorfZ  Chancellor,  the  High  Court  of  Appeal  in  Chancery,  the  Admiralty, 
and  Ecclesiastical  Courts ;  making  the  amount  of  matter  more  than  double 
that  furnished  in  the  Philadelphia  series. 

V.  The  Law  and  Equity  Reports  are  sold  at  S2  per  volume,  which  will 
amount  to  S8  per  year  hereafter.  Considering  the  amount  of  matter  which 
they  contain  their  cost  is  less  than  one  half  that  of  the  Philadelphia  series. 

These  Reports  are  now  regularly  digested  In  our  Annual  United  States 
Digest,  which  thus  embraces  an  Annual  Digest  of  the  whole  English  and 
American  Law.  We  shall,  upon  the  completion  of  Volume  XXX.,  publish 
a  separate  Digest  of  these  Reports  up  to  that  time. 

For  the  greater  convenience  of  the  profession",  we  shall  also  hereafter 
publish  a  table  of  all  the  cases  in  these  Reports,  with  a  reference  to  the 
volume  and  page  of  every  other  series  where  the  same  case  may  be  found. 

Vols.  I.  to  XXVI.,  now  ready  for  delivery,  at  S2  per  volume,  to  perma- 
nent subscribers. 


Wukis  ITvunitlij  puhlii(|itii. 


S2!Iljtaton*j3  Kutrntational  Unto. 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  the  late  Hon. 
IIkxky  AViieaton,  LL.  D.  Sixth  Edition,  revised,  annotated, 
and  broiijilit  down  to  the  present  time,  -with  a  Biographical  Notice 
of  J\[r.  AYheaton,  and  an  Account  of  the  Diplomatic  Transactions 
in  whicli  he  was  concerned.  By  Hon.  Wyi.  Beach  Laavkence, 
formerly  Cliarge  d' Affaires  at  London.     In  one  volume.     8vo. 


Slnijcll  on  limitations. 

TREATISE  ON  THE  LIMITATIONS  of  Actions  at  Law 
and  Suits  in  Equity  and  Admiralty,  with  an  Appendix  containing 
tlie  American  and  English  Statutes  of  Limitations,  and  embracing 
the  latest  Acts  on  the  subject.  By  Joseph  K.  Axgell,  Esq. 
Third  Edition,  revised  and  greatly  enlarged.  By  John  Wildeu 
Mat,  Esq.     1  vol.  8vo.     $5.00. 

Judge  Lipscomb,  in  giving  the  opinion  of  the  Supreme  Court  of  Texas,  in  1854, 
(11  Texas  Kcp.  524,)  pronounced  this  worlv  tlie  "standard  worlc  on  Limitations." 

"  Tliere  is  high  authority  for  saying  that  this  is  much  the  best  treatise  on  tlic 
very  important  subject  to  which  it  relates;  Lord  Brougham  having  pronounced 
that  opinion  of  the  first  edition,  whicii  lias  subsequently  been  much  enlarged  and 
improved.  All  the  learning  scattered  through  the  English  and  American  reports 
in  regard  to  the  construction  and  eilect  of  the  various  statutes  of  limitations  appears 
to  have  been  diligently  compiled  and  systematically  arranged.  The  labors  of  ^tr. 
May  have  considerably  increased  the  value  of  the  work,  and  will  cause  this  edi- 
tion to  supersede  the  previous  ones." —  N.  Y.  Times. 

"  The  merits  of  this  treatise,  in  its  original  form,  arc  well  known.  Upon  its  first 
appearance  it  took  rank  among  our  standard  treatises,  and  has  never  been  super- 
seded—  as  too  many  very  carefully  written  law  books  are  —  by  other  works  em- 
bodying later  views  and  doctrines. 

"  The  improvements  in  the  third  edition  consist  in  Mr.  May's  annotations  and 
references  to  the  latest  authorities.  The  original  text  of  Angell  stands,  we  be- 
lieve, xuialtered;  but  in  notes  appended  to  it  Mv.  May  has  performed  the  useful 
service  of  referring,  imder  the  proper  heads,  the  new  cases  decided  since  the  ori- 
ginal publication;  often  quoting  them  at  length.  The  work  is  thus  enriched  by 
the  addition  of  upwards  of  seven  hundred  cases,  the  annotations  enlarging  the 
work  about  one  third,  the  number  of  pages  being  now  about  eight  hundred. 

'•In  the  Appendix,  which  contains  the  statutes  of  limitations  of  the  various 
States,  we  note  the  addition  of  the  statutes  of  California,  Florida,  Iowa,  and  Texas, 
not  embraced  in  the  previous  editions." — N.  Y.  Commercial  Advei-tiser. 


Slmccicait  3RaiHMaj>  (tantn* 

CASES  RELATING  TO  THE  LAW  OF  RAILWAYS,  decided 
in  the  Supreme  Court  of  the  United  States,  and  in  the  Courts 
of  the  several  States,  with  Notes.  By  Ciiauxcey  Smith  and 
Samuel  W.  Bates,  Esqrs.,  Counsellors  at  Law.  Vol.  I.  8vo. 
$4.50. 


CASES  EELATING  TO  RAILWAYS  AND  CANALS,  ar^rued 
and  adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to 
1852.  Edited  by  Samuel  W.  Bates  and  Chauxcey  Smith, 
Esquires.     6  vols.     8vo.     $24.00. 

"  The  present  edition  of  the  '  English  Railway  Cases  '  embodies  a  collection  of 
all  decisions  upon  that  subject  since  1S35.  An  appendix  to  the  first  volume  con- 
tains all  the  cases  pi'ior  to  that  date  which  bear  upon  American  Railway  Law. 
Editorial  notes  give  the  information  requisite  to  enable  American  readers  to  enter 
into  the  bearings  of  each  case.  The  'American  Railway  Cases'  contains  the 
entire  bodj'  of  decisions  upon  the  subject,  in  this  country.  The  two  works  include 
nearly  one  thousand  cases;  and  thus  form  a  ver}'  complete  library  upon  their  im- 
portant topic. 

"  We  need  say  nothing  of  the  value  of  these  works  to  the  lawyer  whose  clients 
are  directors  of  companies;  or  stockholders  in  them;  or  travel  on  their  roads  or 
send  freight  by  them ;  or  have  their  lots  cut  through  by  new  routes ;  or  are  liable 
in  any  way  to  have  dealings  with  railroad  interests.  Wc  leave  such  a  lawj-er  to 
look  at  the  books  themselves,  while  we  respectfully  inquire  whether  such  a  col- 
lection of  cases  would  not  be  a  suitable  addition  to  the  library  of  the  Board  Rooms 
of  some  of  our  companies."  —  N.  Y.  Times. 


33arsons  on  <a:onti'acts. 

TREATISE  on  the  Law  of  Contracts.  By  Hon.  Theophilus 
Parsons,  Professor  in  Dane  Law  College,  Cambridge,  Mass. 
Vol.  L     Bvo.     $5.50. 


^^illips  on  Knsutancc, 

A  TREATISE  ON  THE  LAW  OF  INSURANCE.  By  Hon. 
WiLLARD  Phillips.  Fourth  Edition,  enlarged.  2  vols.  8vo. 
$10.00. 


p?oU)autr's  i^fpovts. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVL     8vo.     $5.50. 

"  Next  to  the  reports  of  the  Courts  of  his  own  State,  those  of  the  United  States 
Supreme  Court  are,  in  many  respects,  the  most  important  and  valuable  to  the 
practising  lawyer.  If  the  decisions  of  that  Court  do  not,  perhaps,  embrace  so  wide 
a  range  of  questions,  yet  their  authority  in  our  State  courts  is  of  course  higher 
than  those  of  any  otlier  tribunals.  The  value  of  these  Reports  is  increased  by  the 
thorough  manner  in  which  they  are  prepared."  —  iV.  Y.  Times. 

"  These  official  reports  of  the  decisions  of  the  highest  Court  known  to  our  law, 
need  no  commendation  from  critic  or  reviewer.  The  bar  knows  their  value,  and 
the  world  has  learned  to  respect  the  learning,  the  integrity,  and  the  sagacity  of 
our  federal  judiciary."  —  N.  Y.  Commercial  Advertiser. 


Ensrll  on  jfii*e  antr  JLife  JJnsurancr. 

A  TREATISE  on  the  Law  of  Fire  and  Life  Insurance.  With  an 
Appendix,  containing  Forms,  Tables,  &c.  By  Joseph  K.  An- 
GELL,  Esq.     1  vol.     8vo.     $5.00. 


6 

23iMttc  on  ^ttticfjmcnt, 

A  TREATISE  ON  THE  L  A.W  OF  SUITS  BY  ATTACHMENT 
ill  the  United  States.  By  Charles  D.  Drake,  Esq.,  of  St. 
Louis.     1  vol.     8vo.    $4.50. 

"It  is  now  aliont  six  Avceks  since  I  liad  the  pleasure  to  receive  the  copy  you 
■were  kind  onoush  to  send  me  of  )'our  work  on  tlie  Law  of  Suits  by  Attachment, 
but  it  is  only  within  the  last  few  days  that  I  have  found  time  to  examine  it  Avith 
sufficient  care  to  enable  me  to  acquaint  myself  with  its  characteristics.  I  expected 
to  find  the  several  topics  embraced  by  the  fcencral  subject  logically  arranged,  and 
treated  witli  ability,  perspicuity,  and'  learning,  and  it  affords  me  sincere  pleasure 
to  assure  you  that  this  expectation  has  not  been  disappointed.  It  is  very  clear 
that  such  a  work  was  needed,  and  while  it  cannot  fail  to  prove  eminently  useful 
to  your  professional  brethren  throughout  the  Union,  I  trust  it  will  bring  to  its 
author  the  rewards  to  which  it  appears  to  me  justly  to  entitle  him."  —  Letter  from 
lion.  A.  Conllinq,  late  U.  S.  Jtifh/e  for  the  Northern  District  of  New  York. 

"  I  am  much  i)lcased  with  your  work  on  the  Law  of  Attachments.  It  is  very 
creditable  to  you,  and  will  be  found  a  valuable  acquisition  to  the  profession.  You 
have  treated  the  subject  with  clearness  and  ability,  and  by  your  references  you 
have  sustained  your  views  by  the  highest  authorities."  —  Letter  from  Hon.  John 
McLean,  Associate  Justice  of  the  Supreme  Court  of  the  United  States. 


MolJlj^iQ  l^atcut  (t^mn. 

COLLECTION  OF  PATENT  CASES  decided  in  the  Supreme 
and  Circuit  Courts  of  the  LTnited  States,  from  their  orfranization 
to  the  year  1850,  with  Notes,  Index,  &c.  By  James  B.  Robb, 
Esq.     2  vols.     8vo.     $10.00. 

"  Jlr.  Eobb's  book  is  a  most  welcome  addition  to  the  libraries  of  inventors  and 
the  owners  of  American  patents.  The  collection  is  much  more  complete  than 
any  similar  reports  which  we  have  in  this  branch  of  the  law  in  England."  — Prac- 
tical Mechanics'  Journal. 


SUnitctr  States  <Sc?3sion  HaUis,  1854-55. 

THE  STATUTES  AT  LARGE  and  Treaties  of  the  U.  S.  of 
America.  Commencing  with  the  Second  Session  of  tlie  Thirty- 
third  Congress,  1854-55  —  carefully  collated  with  the  originals 
at  Washington,  Published  by  authority  of  Congress.  Edited 
by  George  Mixot,  Esq.     Royal  8vo.,  stitched  $1.00. 


AND    PREPARING    FOR    PUBLICATION. 


PARSONS   ON   COMMERCIAL,    luATSY. 

THE  PRINCIPLES  OF  COMMERCIAL  LAW.  By  Hon. 
Theopiiilus  Parsons,  LL.  D.,  Dane  Professor  in  the  Law 
School  of  Harvard  University,  in  Cambridge.     2  vols.     8vo. 

The  principal  topics  of  the  first  volume  will  bo  the  Origin  and  History 
of  the  Law  Merchant;  the  Law  of  Partnership;  of  Sales;  of  Agency; 
of  Bills  and  Notes;  and  of  Marine  Insurance.  The  second  volume  will 
contain  the  Law  of  Shipping,  and  the  Law  and  Practice  of  Admiralty. 


BISHOP    ON   CRIMINAL,    L,ATV. 

COMMENTARIES  ON  CRIMINAL  LAW.  By  Joel  Prkn- 
Tiss  Bisnop,  Esq.,  Author  of"  Commentaries  on  the  Law  of  Mar- 
riage and  Divorce."  The  first  A'olume  to  be  a  complete  elementary- 
Treatise  of  itself. 

This  work  is  intended  to  embrace  the  entire  field  of  Enfjlish  and 
American  Criminal  Jurisprudence,  traversed  by  new  paths.  It  will  be 
both  elementary  and  practical;  adapted  alike  to  the  use  of  the  student, 
the  magistrate,  and  the  practising  lawyer ;  and  on  important  points,  will 
contain  citations  of  all  the  English  and  American  cases. 

AMERICAN  RAILROAD  CASES. 

A  COMPLETE  COLLECTION  OF  THE  AMERICAN  CASES 
relating  to  the  Rights,  Duties,  and  Liabilities  of  Railroads,  with 
Notes  and  References  to  the  English  and  American  Railway, 
Canal,  and  Turnpike  Cases.  By  Chauxcey  Smith  and  S.  W. 
Bates,  Esquires.     2  vols.     8vo.     Vol.  I.  now  ready. 

PARSONS   ON   CONTRACTS. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Hon. 
Theophilus  Parsons,  Professor  in  Dane  Law  College,  Cam- 
bridge, Mass.  In  2  vols.  8vo.  Vol.  I.  now  ready.  Vol.  II. 
will  be  ready  in  June. 

THE   LAW   OF   ADMIRALTY. 

LEADING  CASES  IN  ADMIRALTY  AND  SHIPPING,  with 
Notes  and  Commentaries.  By  a  Member  of  the  Suffolk  Bar. 
1  vol.     8vo. 

BLACKBURN  ON  THE  CONTRACT  OF  SALE. 

A  TREATISE  ON  THE  LAW  OF  SALES.  By  C.  Black- 
BURN.  With  Additions,  Notes,  and  References.  By  William 
P.  Wells,  Esq.     1  vol.     8vo. 

FRAUDS. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STA- 
TUTE OF  FRAUDS.  By  Causten  Broavne,  Esq.,  of  the 
Suffolk  Bar.     1  vol.     8vo. 

ARBITRATION. 

ARBITRATION,  at  Common  Law,  in  Equity,  and  under  the  Sta- 
tutes of  the  States  of  the  United  States.  By  Edward  G.  Lor- 
ING,  Esq.,  of  the  Suffolk  Bar. 

VENDORS  AND  PURCHASERS. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq.     2  vols.     8vo. 


8 

HUSBAND  AND  WIFE. 

THE  PRINCIPLE  AND  RULES  OF  LAW  regulating  the  Pro- 
perty of  Husband  and  Wife ;  and  Civil  Actions  therefor.  By 
Edavakd  G.  Lokixg,  Esq. 

PRECEDENTS  OF  INDICTMENTS. 

PRECEDENTS  OF  INDICTMENTS,  Special  Pleas,  &c.,  adapted 
to  American  Practice,  with  Notes,  containing  the  Law  of  Crimi- 
nal Pleading.  By  Charles  R.  Train,  and  F.  F.  PIeard,  Esqrs., 
of  the  Middlesex  Bar.     1  vol.      8vo.     Nearly  ready. 

HIGHWAYS. 

A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication 
of,  Travellers,  Travelling,  &;c.  By  Joseph  K.  Angell,  Esq. 
1  vol.     8vo. 

ENGLISH  REPORTS. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Edmund  II.  Bennett  and  Chauncey  Smith,  Esqrs.  Vol. 
XXVII. 

GRAY'S  REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Horace  Gray,  Jr.  1  vol. 
8vo. 

CRIMINAL   LAW. 

A  COLLECTION  OF  LEADING  CASES  in  various  branches  of 
the  Criminal  Law,  with  Notes.  By  B.  F.  Butler  and  F.  F. 
Heard,  Esquires.     2  vols.     8vo. 

WALKER'S   INTRODUCTION. 

INTRODUCTION  TO  COMMON  LAW.  By  Hon.  Timothy 
Walker,  of  Cincinnati.      Third  edition,  revised.     1  vol.       8vo. 

REAL   PROPERTY. 

LEADING  CASES  in  the  Law  relating  to  Real  Property,  Con- 
veyancing, and  the  Construction  of  Wills.  By  Oaven  D.  Tudor, 
Esq.,  of  the  Middle  Temple.  With  Notes,  by  a  Member  of  the 
Suiiblk  Bar.     1  vol.      8vo. 

HOWARD'S   REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVII. 


THE 


LAW  OF  CONTRACTS. 


BY 

THEOPHILUS  PARSONS,  LL.  D. 

DANE   PROFESSOR   OF   LAW    IN   nARVARD    UNIVERSITY,   AT    CAMBRIDGE. 


VOLUME   IL 


BOSTON: 
LITTLE,    BROWN    AND    COMPANY. 


MDCCCLV. 


Entered  according  to  Act  of  Congress,  in  the  year  1855, 

Br  Theophilus  Parsons, 

in  the  Clerk's  OfBce  of  the  District  Court  of  the  District  of  Massachusetts. 

T 


BIVEB8IDE,    CAMBEIDGE: 
PRmTED  BY  H.  O.  HOUGnTON  AKD  OOMPANV. 


L 


CONTENTS. 


PART    II. 


THE  LAW  OF  CONTRACTS   CONSIDERED    IN  REFERENCE    TO 
THE  OPERATION  OF  LAW  UPON  THEM. 


CHAPTER  I. 

CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS. 
t 

SECTION  I. 

Page 
General  purpose  and  principles  of  construction 1 

SECTION  IL 
Of  the  effect  of  intention 6 

SECTION  m. 
Some  of  the  general  rules  of  construction 11 

SECTION  IV. 
Entirety  of  contracts 29 

SECTION  V. 
Apportionment  of  contracts 32 

SECTION  VI. 
Of  conditional  contracts 36 


755981 


IV  CONTENTS. 

SECTION  VII. 

Page 
Of  mutual  contracts 40 

SECTION  vm. 

Of  the  presumptions  of  law 42 

SECTION  IX. 
Of  the  effect  of  custom  or  usuage 48 

SECTIOlNl  X. 

Of  the  admissibility  of  extrinsic  evidence  in  the  interpretation 

of  written  contracts 59 


CHAPTER  II. 

THE    LAW    OF   PLACE. 

SECTION  I. 
Preliminary  remarks 79 

SECTION  n. 
General  principles 80 

SECTION  m. 
Capacity  of  parties 84 

SECTION  IV. 
Domicile 90 

SECTION  V. 
The  place  of  the  contract 94 

SECTION  VI. 
Of  the  law  of  the  forum  in  respect  to  process  and  remedy    .     .     100 

SECTION  vn. 

Of  foreign  marriages 104 


CONTENTS.  V 

SECTION  vni. 

Page 
Of  foreign  divorces 113 

SECTION  IX. 
Foreign  judgments 117 

CHAPTER  III. 

DEFENCES. 

SECTION  I. 

Payment  of  money. 

And  herein, 

1 .  Of  the  party  to  whom  payment  should  be  made     ....  126 

2.  Of  part  payment 129 

3.  Of  payment  by  letter   .     .     .     • 132 

4.  Of  payment  in  bank-bills 133 

5.  Of  payment  by  check  .     . 135 

6.  Of  payment  by  note 136 

7.  Of  payment  by  delegation 137 

8.  Of  stake-holders  and  wagers 138 

9.  Of  appropriation  of  payments 140 

SECTION  n. 

Of  performance 147 

And  herein, 

1.  Of  tender 148 

2.  Of  the  tender  of  chattels 157 

3.  Of  the  kind  of  performance 168 

4.  Of  part  performance 170 

5.  Of  the  time  of  performance 173 

6.  Of  notice 180 

7.  Of  the  impossibility  of  performance 184 

SECTION  IV. 
Of  defences  resting  upon  the  acts  or  omissions  of  the  plaintiff  .     187 

SECTION  V. 

Accord  and  satisfaction 193 

a* 


VI  CONTENTS. 

SECTION  VI. 

Page 

Of  arbitrament  and  award 200 

SECTION  vn. 

Of  a  release '. 219 

SECTION  vin. 
Of  alteration 223 

SECTION  IX. 
Of  the  pendency  of  another  suit 231 

SECTION  X. 
Of  former  judgment 234 

SECTION  XL 
Of  set-off 239 

SECTION  XU. 

Of  illegal  contracts 252 

And  herein, 

1.  Of  contracts  in  restraint  of  trade 253 

2.  Of  contracts  opposed  to  the  revenue  laws  of  other  countries  259 

3.  Of  contracts  which  tend  to  corrupt  legislation 260 

4.  Of  wagering  contracts       .     .     .     .     • 261 

5.  Of  maintenance  and  champerty 262 

SECTION  xm. 

Of  fraud 264 

CHAPTER  IV. 

OF    THE    STATUTE    OF    FRAUDS.  284 

CHAPTER  V. 

THE    STATUTE    OF    LIMITATIONS. 

SECTION  I. 
The  general  purpose  of  the  statute 341 


CONTENTS.  Vll 

SECTION  n. 

Page 

Of  a  new  promise * 347 

SECTION  m. 
Of  part  payment 353 

SECTION  IV. 

Of  new  promise,  and  part  payments  by  one  of  several  joint 

debtors 359 

SECTION  V. 
Of  accounts  between  merchants 366 

SECTION  VI. 
When  the  period  of  limitation  begins  to  run 370' 

SECTION  VII. 
Of  the  statute  exceptions  and  disabilities 373 

SECTION  vni. 

That  the  statute  affects  the  remedy  only,  and  not  the  debt    .    .    379 
CHAPTER    VI. 

OF   INTEREST   AND    USURY. 

SECTION  I. 
Of  interest,  and  when  it  is  recoverable 380 

SECTION  n. 
What  constitutes  usury      . 383 

SECTION  ni. 
Immateriality  of  the  form  of  the  contract 385 

SECTION  IV. 
The  contract  itself  must  be  tainted  with  usury 392 

SECTION  V.     ■ 
Substituted  securities  are  void 394 


Vlll  CONTENTS. 

SECTION  VI. 

Page 

Distinction   between  "the  invalidity  of  the   contract,  and   the 

penalty  imposed 400 

SECTION  vn. 

Of  contracts  accidentally  usurious 405 

SECTION  vni. 

Of  discount  of  notes  and  bills 408 

SECTION  IX. 
Of  a  charge  for  compensation  for  services 410 

SECTION  X. 
Of  a  charge  for  compensation  for  risk  incurred 414 

SECTION  XI. 
Contracts  in  which  a  lender  becomes  partner 419 

SECTION  XII. 
Of  sales  of  notes  and  other  choses  in  action 421 

SECTION  xm. 

Of  compound  interest 427 

CHAPTER  VII. 

DAMAGES. 

SECTION  L 
Of  the  general  ground  and  measure  of  damages     ......     432 

SECTION  II. 
Of  liquidated  damages 433 

SECTION  in. 
Of  circumstances  which  increase  or  lessen  damages  ....     441 

SECTION  IV. 
Of  exemplary  and  vindictive  damages 446 


CONTENTS.  IX 

SECTION  V. 

Page 
Of  direct,  or  remote,  consequences 454 

SECTION  VI. 

Of  the  breach  of  a  contract  that  is  severable  into  parts    .     .     .     463 

SECTION  VII. 

Of  the  legal  limit  to  damages 465 

And  herein, 

1.  In  an  action  against  an  attorney  or  agent 465 

2.  In  an  action  against  a  common-carrier 468 

3.  In  the  action  of  trover 470 

4.  In  the  action  of  replevin 477 

5.  Where  a  vendee  sues  a  vendor  .     .     .     .' 479 

6.  Where  a  vendor  sues  a  vendee 483 

7.  Whether  expenses  may  be  included  in  damages     ....  487 

8.  When  interest  is  included 489 

SECTION  vni. 

Of  the  breach  of  contract  to  pay  money  or  goods 490 

SECTION  IX. 
Of  nominal  damages 492 

SECTION  X. 
Of  damages  in  real  actions 494 

CHAPTER    VIII. 

THE   CONSTITUTION    OF    THE    UNITED    STATES. 

SECTION  I. 

What  are  contracts,  within  the  clause  respecting  the  obligation 

of  them 509 

SECTION  IL 
What  rights  are  implied  by  a  grant 515 

SECTION  III. 
Of  an  express  grant  of  exclusive  privileges  . 517 


X  CONTENTS. 

SECTION  IV. 

Page 

Of  the  relation  of  this  clause  to  marriage  and  divorce      .     .     .     527 

SECTION  V. 
Of  the  relation  of  this  clause  to  bankruptcy  and  insolvency  .     .     530 

SECTION  VI. 
Of  the  meanins;  of  the  word  "  oblio;ation  "    in  this  clause     .     .    '536 


INDEX  TO   CASES   CITED. 


Page 

Abbot  I'.  Massie  61 

Abbott  V.  Keith  353 

Abeel  v.  Radcliff  294,  298 

Abington  v.  North  Bridgewater  90 

Abrahat  v.  Brandon  212 

Abrahams  v.  Bunn  393,  402 

Abrams  i'.  Pomeroy  66 

Acebal  v.  Levy  295,  325,  328 

Acherley  v.  Vernon  40,  41 

Acker  v.  Ledyard  230 

Ackland  v.  Pearce  394 

A'Court  V.  Cross  345,  350 

Adam  v.  Kerr  101 

Adams  v.  Frye  226 

V.  Hill  15 

V.  M'Millan  292,  294,  295 

V.  Shelby  278 

V.  Steer  16 

V.  Tapling  198 

V.  Townsend  340 

V.  Warner  20 

V.  Williams  45 

Adaipson  v.  Jarvis  282,  468 

Addington  v.  Allen  270 

Addison  v.  Gray  202,  210 

Agnew  V.  McElroy  236,  239 

V.  Pratt  536 

Agricultural  Bank  v.  Bissell  407 

Aiken  v.  Benton  342 

V.  Sanford  169 

Ainslie  v.  Boynton  242 

V.  Goff  217 

V.  Medlycott  282 

Ainsworth  v.  Partillo  466 

Alden  v.  Blague  200 

Alder  v.  Kcighley                    .  452 

V.  Saville  207,211 

Aldrich  v.  Albee  161,  162,  163 

V.  Kinney  120 

V.  Reynolds  397 

Alexander  v.  Burnet  375,  376 

V.  Comber  333 


Page 

Alexander  v.  Herr 

495 

V.  Merry 

293 

Alger  V.  Thacher 

257 

Alivon  V.  Furnival 

118 

Allair  v.  Whitney 

493 

Works  V.  Guion 

468 

Allegre  v.  Maryland  Ins.  Co. 

49 

Allen  V.  Allen 

111 

V.  Anderson 

504 

V.  Bennet                  285 

290,  298 

V.  Blunt 

442 

V.  Edgerton 

193 

V.  Hearn 

262 

V.  Jarvis 

484 

V.  Kincaid 

46 

V.  Mille 

378 

V.  Merchants  Bank 

55 

V.  McKean 

513 

V,  Eescous 

252 

V.  Sanders 

42 

V.  Suydam 

467 

V.  Thompson 

306 

Allies  V.  Probyn 

195 

Allin  V.  Shadburne 

222 

Alna  V.  Plummel 

506 

V.  Plummer 

292,  294 

Alner  v.  George 

129 

AlofFu.  Scrimshaw 

220 

Alsager  v.  St.  Katharine's  Dock  Co.  29 

Alston  V.  State  Bank  356 

Altham's  case  69,  70,  71 

Alves  V.  Hodgson  82,  83 

Amer  v.  Longstreth  449,  451 

Amiable  Nancy  441,  459 

Amory  v.  Gilman  261 

V.  McGregor  468 

Ancrum  v.  Slone  382 

Anderson  v.  Buckton  498 

V.  Burnett  270 

V.  Chick  292 

V.  Erving  492 

V.  Harold  287 

V.  Hawkins  134 


Xll 


INDEX   TO   CASES   CITED. 


Anderson  v.  Pitcher 
V.  Scott 
r.  Wallace 

Andrew  v.  Boughcy 
V.  Dieterick 

Andrews  v.  Brown 
V.  Herriot 


rage 
52 
321 
209 
131 
270 
342 
100,  118,  120 


V.  His  Creditors  82 

V.  Pond.  82,  95,  96,  385,  387, 

413 

Anees  v.  Millward  207 

Angus  r.  Bedford  208,  209 

Anstcy  v.  Harden  305 

Aastill  I'.  Crawford  466 

Anstrutlier  r.  Adair  110 

Antram  i'.  Chace  213 

Archer  v.  Baynes  286,  294 

V.  Dunn  245 

V.  English  150 

V.  Leh  323 

V.  Marsh  256 

V.  Putnam  386 

V.  Williams  455 

V.  Williamson  209 

Archibald  v.  Thomas  12 

Argall  V.  Bryant  372 

Armington  v.  Barnct  522,  526 

Armislead  i'.  Butler  244 

Armitt  r.  Breame  211 

Armstrong  v.  Burrows  68 

V.  Percy  442,  489 

V.  Perry  487 

V.  Tolcr  259 

Arnitt  r.  Bream  178 

Arnold  r.  Arnold  237 

u.  Downing  351,356 

V.  The  Mayor,  &c.  of  Poole  141 

Arnott  V.  Rcdfern  382 

Arton  V.  Booth  222 

Arthur  v.  The  Schooner  Cassius       468 

Ash  V.  Putnam  269 

Ashby  V.  James  356 

V.  White  492 

Ashcroft  V.  Morrin  295 

Ashford  v.  Hand  464 

Ashlin  V.  White  272 

Astin  r.  Parkin  495 

Astlcy  V.  Harrison  457 

V.  lleynolds  153 

V.  Weldon  437,  438,  439 

Astor  V.  Price  388 

V.  Union  Ins.  Co.  48 

Atchison  v.  Gee  261 

Athelstan  v.  Moon  203 

Atkins  V.  Boylston  Fire  &  Marine 

Ins.  Co.  178 

V.  Kinnier  429 

V.  Tredgold  360,  361 

Atkinson  v.  Brown  47,  173 

V.  Kitduc  185 

V.  Teasdale  249 


Page 

Atkinson  v.  The  State  Bank  232 

Atlee  y.  Backhouse  199 

Attorney-General  v.  Day  292 

V.  Plate  Glass  Co.  68 

r.  Shore  78 

V.  Sibthorp  70 


Attwood  I'.  Clark 

47 

174 

V.  Small 

279 

V.  Taylor 

147, 

381 

Attwool  V.  Attwool 

245 

Atwater  v.  Townscnd 

102 

V.  Woodbridge 

526 

Atwood  V.  Cobb 

65 

173 

V.  Whittlesey 

390 

Aubert  v.  Maze 

210 

213 

Ault  V.  Goodrich 

369 

Auriol  V.  Thomas 

411 

Austin  V.  Bostwick 

361 

V.  Sawyer 

314 

V.  Wilson 

450 

Avery  i'.  Fitch 

464 

V.  Stewart 

161, 177 

178 

Ayer  v.  Hawkins 

141 

356 

V.  Spring 

497 

Ayers  ?'.  Hewett 

279 

Ayliffe  i'.  Tracy 

311 

Aynsworth,  ex  parte, 

437 

Avton  V.  Bolt 

345 

B. 


Babcock  v.  Hawkins 

194 

V.  Thompson 

261 

V.  Weston    . 

53  G 

Backus  V.  Lebanon 

514 

522 

526 

Bacon  v.  Brown 

143 

277 

V.  Charlton 

150 

V.  Dubarry 

204 

Badger  v.  Titcomb 

464 

Badgei''s  Case 

215 

Bagg  V.  Jefferson 

242 

Bagiey  v.  Peddic         435, 

437, 

439 

440 

Bailey  v.  Day 

130 

V.  Freeman 

297 

V.  Hastings 

496 

V.  Ogden 

287 

294 

V.  Simonds 

174 

V.  Taylor 

230 

V.  Tiie  Mayor  of  N 

ew  York 

511 

Baily  v.  Curling 

208 

Bainbridge  v.  Wade 

296, 

297 

V.  Wilcox 

429 

Baincs  v.  Jevons 

324 

Bainl  v.  Folliver 

435 

Bakcman  v.  Pooler 

154 

Baker  v.  Baker 

74 

I'.  Boston 

538 

r.  Brown 

248 

V.  Dewey 

221 

V.  Newton 

70 

INDEX  TO   CASES   CITED. 


XIU 


Baker  v.  Stackpoole 

V,  Whcaton 
Balcom  v.  Eichards 
Balch  ex  parte 
Baldwin  v.  Miinn 

V.  Williams 
Baldey  v.  Parker 
Ball  V.  Gilbert 
V.  Stanley 
V.  Storie 
Ballard  v.  Noaks 
V.  Oddey 
V.  Walker 
Ballinger  v.  Edwards 


Page 

143 

53G 

364 

232 

504,  505, 506 

331 

321 

261, 202 

133,  157 

6 

194 

393 

290 

404,  425 


Baltimore  &  Susquehannah  K.  R 

Co.  V.  Nesbit  534 

Bamford  v.  Harris  247 

Bamgardener  v.  The  Circuit  Court  534 

Bampton  v.  Paulin  309 

Bamfield  v.  Solomons  404 

Bangor  v.  Warren  136 

Bank  v.  Curry  230 

V.  McChord  230 

V.  Spicer  136 

Bank  of  Augusta  v.  Earle  80 

Columbia  v.  Fitzhugh  51 

Lansingburgh  v.  Crary        314 

IMonroe  v.  Strong  398 

North  America  v.  M'Call    123 

the  State  v.  Bank  of  Cape 

Pear  514 

St.  Albans  407 

United  States  v.  Donally     82, 

100,  102 

V.  Dunseth   497 

V.  Owens      385, 

386,  400 

V.  Waggener 

385,  386 

Utica  u.  Phillips  411 

V.  Smith  51 

v.  Wagar  407,411 

Washington  v.  Triplet  51 

Watertown  v.  Assessors  of 

Watertown  527 

Banks  v.  Adams  202 

V.  Pike  245 

Bannister  v.  Read  35 

Banton  v.  Iloomes  244 

Barber  v.  Andovcr  522 

V.  Brace  50 

V.  Barber  369 

y.  Root  116 

Barely  v.  Kennedy  430 

Barclay  f/(«  ^ani  w.  Walmslcy  414 

Barfoot  v.  Preswell  23 

Barickman  i\  Kuykendall  294 

Baring  v.  Christie  25 

Barker  v.  Braham  240,  241 

V.  Bucklin  303 

V.  Cassidy  372 

VOL.  II.  h 


Barker  v.  Pittsburgh 

V.  Richardson 

V.  St.  Quintin 

V.  Sutton 

I'.  Vansommer 
Barley  v.  Walford 
Barnard  i".  Bartholomew 
I'.  Cushing 
I'.  Poor 
V.  Young 
Barnes  v.  Bartlett 

V.  Hedley 

v-  Parker 

V.  Worlich 
Barnet  v.  Gilson 
Barnett  v.  Stanton 
Barney  v.  Bliss 

V.  Frowne 

V.  Patterson 
Barns  v.  Graham 
Barnum  v.  Vandusen 
Baron  v.  Abcel 
Barr  v.  Myers 
Barrel!  v.  Trussell 
Barret  v.  Hampton 
Barrett  v.  Allen 

V.  Barrett 

V.  Deere 

V.  French 

V.  Lewis 


Page 
512 
129 
219 
171 
386 
272 

349,  381 
26 

442,  451 
389 
478 
396 
211 
409 
204 

273,  277 
158 
497 

233,  293 

158,  1C5 
498 
495 

160,  161 
306 
261 

161,  179 
240,  242,251 

127,  151 

16 

142 


V.  Stockton,  &c.  Railway  Co.  19 

V.  Thorndike  231 

Barringer  v.  Sneed  65 

Barstow  v.  Gray  290 

Bartlett  v.  Pentland  54,  57,  128 

V.  Knight  121 

V.  Vinor  253 

V.  Williams  413 

Barton  v.  Fitzgerald  13,  14,  20 

V.  Glover  439 

V.  McKelway  48,  53,  55 

Baxter  v.  Bradbury  499 

V.  Leland  54" 

V.  Penniman  366 

V.  Rycrss  500,  501 

Bayard  ?;.  Skunk  134 

Bayley  v.  Ashton  357 

V.  Edwards  120,  232 

V.  Homan  195 

Baylies  v.  Fettyplace  187 

Bayliffe  v.  Butterworth  51 

Baylis  v.  Attorney-General  62,  75 

Baynes  v.  Fry  412 

Bash  r.  Bash  506 

Baskervillc  v.  Brown  247 

Bason  v.  Hughart  304 

Bass  V.  Bass  369 

V.  Smith  342 

Basset  V.  Kerne  161 

Basten  v.  Butter  246 

Batchelder  I'.  Batcheldcr  117 


XIV 


INDEX  TO   CASES  CITED. 


Page 

Page 

Batchcklcr  i'.  Sturgis 

503 

Bemcnt  v.  Smith 

484 

,485 

Bate  V.  Burr 

3S1 

Bender  v.  Frombcrger 

500 

,  501 

V.  Cartwright 

139 

V.  Stoneberger 

499 

Bates  V.  Bates 

158 

Bendernagle  i\  Cocks 

464 

V.  Churchill 

158 

Benedict  v.  Bcebee 

314 

V.  Moore 

319 

Benjamin  v.  Benjamin 

476 

Battin  v.  Bigelow 

494 

V.  Groot 

376 

Battley  i:  Faulkner 

372 

Bennet  v.  Pixley 

44 

Batty  V.  Lloyd 

411) 

Bennett  r.  AUcott 

498 

Beach  v.  Beach 

495 

V.  Francis 

150 

V.  Ranney 

453 

V.  Holmes 

237 

Beal  V.  Nason 

539 

V.  Hull 

334 

V.  Wyman 

70 

V.  Jenkins 

499 

,  500 

Beale  v.  Bcale 

206 

V.  Lockwood 

459 

V.  Coon 

251 

V.  Pratt 

297 

V.  Hayes 

439,440 

Benson  v.  Parry 

412 

V.  Niud 

342 

V.  The  Mayor, 

&c.,  of  New 

Bealey  v.  Grcensladc 

356 

York 

512 

,  518 

Beals  V.  Guernsey 

383 

Bentall  i\  Burn 

324 

V.  Terry 

481 

Bentham  v.  Cooper 

297 

Beaman  v.  Russell 

229,  300 

Benton  v.  Burgot 

120 

Bean  v.  Atwater 

42,  43 

Berry  r.  Bates 

220 

V.  Newbury 

203 

V.  Vreeland 

451 

V.  Simson 

161 

Bessey  i\  Windham 

279 

Bearce  v.  Barstow 

399 

Best  V.  Lawson 

241 

Beardsley  v.  Swann 

443 

Betterbee  v.  Davis 

' 

153 

Beatty  v.  Knowles 

516 

Betts  V.  Lee 

475 

Beauchamp  v.  Damory 

501 

Bevans  v.  Recs 

153 

,  155 

Beaumont  v.  Fell 

62,  76 

Beverly  v.  Burke 

496 

V.  Greathead 

130 

Bibb  V.  Saunders 

244 

Beckett  v.  Taylor 

202 

Bickford  v.  Page 

498 

Beckford  v.  Wade 

104 

Biddlecombe  v.  Bond 

13 

Beckham  v.  Drake 

439 

Bigelow  V.  Loriug 

500 

Beckman  v.  Saratoga  & 

Schenec- 

V.  Maynard 

206 

tady  R.  R.  Co. 

519 

V.  Wiilson 

176 

Bedam  v.  Clerkson 

201,  204 

Biggs  V.  Lawrence 

82 

200 

Bedel  v.  Powell 

453 

r.  Wisking 

324 

Bedell  v.  Jenney 

382 

Bill  V.  Bamcnt 

321 

Bedell's  Case 

67 

V.  Porter 

137 

Bedingfield  v.  Ashley 

418 

Bingham  v.  AUport 

151 

Beebe  v.  PLIliott 

237 

Birch  V.  Depeyster 

48 

245 

Beed  v.  Blandford 

192 

V.  Tcbbutt 

142 

Beekman  v.   Saratoga  &  Schenec- 

V. The  Earl  of  Liverpool  310 

317 

tady  R.  R.  Co. 

522,  524 

Bird  V.  Adams 

305 

Beers  v.  Crowcll 

331 

V.  Bird 

201, 

202 

V.  Haughton 

532 

V.  Blosse 

311 

Bcetc  V.  Bidgood 

387 

V.  Boulter 

292, 

293 

Beldcn  v.  Seymour 

66 

?•.  Gammon 

304, 

349 

Belding  i-.  Pitkin 

252,  264 

V.  IMulilonbriuk 

336 

Bell  V.  Bell 

67 

Birks  V.  Trippet 

208 

V.  Bruen 

14,  95 

Bishop  V.  Cliambrc 

229 

?;.  Crawford 

346 

Bissell  V.  Briggs 

120,  121, 

122 

V.  Cunningham 

407 

V.  Bissell 

177 

i\  Gipps 

■       208 

V.  Edwards 

124 

V.  llorton 

248 

V.  Erwin 

500 

V.  Morrison,  340,348, 

352,361,302, 

Bitner  v.  Brough 

504 

364 

Bixby  V.  Whitney 

101, 

162 

V.  Palmer 

408 

Black  V.  Baxendale 

468 

V.  Smith 

262 

V.  Gompertz 

288 

Belotc  V.  Wynne 

363 

V.  Smith 

1153 

Belshaw  v.  Bush 

354,  355 

Blackburn  v.  Scholes 

126 

INDEX  TO  CASES  CITED. 


XV 


Page 

Blackburn  v.  Smith  193 

Blackford  v.  Christian  271 

V.  Peltier  539 
Blackett  v.  Eoyal  Exch.  Assur.  Co.  20, 59 

Blackstone  Bank  v.  Hill  146 
Blackwell  v.  Justices  of  Lawrence 

Co.  500 

Blagden  v.  Bradbear  292,  295 

Blair  v.  Bromley  378 

V.  Drew  352,  369 

Blaisdell  r.  Babcock  442 

Blake  v.  Cole  319 

V.  Crowninshield  177 

V.  Midland  R.  Co.  444 

V.  Williams  99 

Blakemore  v.  Glamorganshire  Can. 

Nav.  19 

Blakcsley  v.  Smallwood  243 

Blanchard  v.  Ely        458,  459,  461,  505 

V.  Hilliard  51 

V.  Lilley  209 

V.  Noyes  130 

V.  Russell  80,  99,   531,  535, 

536 

V.  Stone  234 

Bland  v.  CoUett  261 

V.  Haselrig  342 

Blaney  v.  Hendrick  381,  382 

Blantou  v.  Knox  319 

Blasdale  v.  Babcock  488 

Blcnkinsop  v.  Clayton  321,  332 

Bligh  V.  Brent  315 

Blinnu.  Chester  131,  199 

Bliss  V.  Mclntire  231 

V.  Bobbins  215 

V.  Thomson  280 

Block  V.  Bell  21 

Blodget  V.  Jordan  124 

Bloodgood  V.  Bruen  349,  365 

Blood  V.  Shine  206 

Bloomer  v.  Sherman  212 

Blore  V.  Sutton  291 

Blot  V.  Boiceau  466,  493 

Blount  V.  Hawkins  306 

Blow  V.  Russell  153 

Blundell  v.  Gladstone  70,  74 

Blydenburgh  r.  Welsh        273,  278,  482 

Boardman  v.  Gore  230 

V.  Keeler  506 

Boddam  v.  Riley  382 

Bodenham  v.  Purchas  137,  144 

^odley  V.  Reynolds  476 

Bodwell  V.  Swan  445 

Bogert  V.  Vermilya  362 

Bohannon  v.  Pace  338 

Bold  V.  Molineux  22,  25 

Bolton  V.  Colder  52 

V.  Richards  135 

V.  The  Bishop  of  Carlisle      231 

Bomeisler  v.  Dobson  5 

Bonham  v.  Badgley  108,  109 

Bonner  v.  Liddell  202 


Page 

Boone  v.  Eyi-c 

39,43 

V.  Poindcxter 

404 

Boorman  r.  Brown 

493 

V.  Nash 

481,  484 

Booth  V.  Garnett 

211 

V.  Smith 

137,  199,  200 

V.  Tyson 

163, 171 

Borden  v.  Borden 

188 

V.  Fitch 

120 

Borridaile  v.  Brunton 

458 

Boroughes's  Case 

28 

Bosanquet  v.  Wray 

142 

V.  Dashwood  405 

Boston  Water  Power  Co.  v.  Boston 

&  Worcester  R.  R.  Co.  522,  525 

Manuf.  Co.  v.  Eiske  450 

Water  Power  Cc^,  v.  Gray  213, 

215 

&  Lowell  R.  R.  Co.  v.  Salem 

&  Lowell,  B.   &    Me.    & 

Lowell  &  Lawrence  R.  R. 

Go's.  524 

V.  Manuf.  Co.  442 

India  R.  F.  v.  Hoit  120 

Bostwick   V.  Leach  314 

Boswell  V.  Tunnell  232 

Botsford  V.  Sanford  397 

Bottomley  v.  Brooke  250 

V.  Forbes  58 

Boucher  u.  Lawson  82,  120,  260 

Bouchaud  V.  Dias  235 

Bound  V.  Lathrop  361 

Bourcier  v.  Lanusse  111 

Bourke  v.  Lloyd  206,  208 

Bourne  v.  GatlifF  57 

Bouttilier  u.  Thick  215 

Bowdell  V.  Parsons  179,  180,  188 

Bowdre  v.  Hampton  361 

Bowen  v.  Stoddard  58- 

Bowerbank  v.  Monteiro  1 1 

Bowers  v.  Hurd  66 

V.  Jewell  226,  227 

V.  Johnson  276,  277 

Bowker  v.  Hoyt  36,  163,  170 

Bowman  v.  Horsey  48 

V.  Teall  469 

Bowne  V.Joy  119,232 

Bowser  v.  Bliss  257 

Boyce  v.  Douglas  231 

V.  Edwards  98 

Boyd  V.  Brown  452,  459 

V.  Browne  272 

V.  Cowan  494 

V.  Hitchcock  131 

Boydell  r.Drummond  286,  317,318,339 

Boyden  v.  Moore  152 

Boyle  V.  Zacharie  535 

V.  Brandon  457 

Boynton  v.  Hubbard  281 

V.  Veazie  324 

Boys  V.  An  cell  439 

Bracegirdle  v.  Heald  316,  319 


XVI 


INDEX   TO   CASES   CITED. 


Page 

Page 

Bracket  r.  JrXair 

468 

British  Linen  Co.  r.  Drummond  100, 102 

Brackctt  v.  Evans 

315 

Brittoii 

V.  Turner 

37,  246 

V.  ]\Iountfort 

227 

Brizee 

V.  Maybee        449,  476, 

478,479 

V.  Norton 

126 

Broad 

V.  Jolvftc 

254, 258 

Bradfield  v.  Tuppcr 

356 

Broadwell  v.  Getman 

319 

Bradford  v.  Gary 

511 

Brock 

V.  Thompson 

394,  425 

V.  Farrand 

536 

Brockway  v.  Clark 

394 

Bradley  v.  Lowry 

91 

Bradie 

V.  St.  Paul 

298,  340 

V.  Todcr 

183 

Bronson  v.  Gleasou 

160,  161 

V.  Wash.  A.  &,  G.  Steam         i 

V.  McKenzie 

539 

Packet  Co. 

62 

V.  Newberry           532 

533,  534 

Bradsey  v.  Clyston 

202 

V.  Strouud 

301 

Bradstrcet  v.  Clarke 

374 

V.  Wiman 

336 

V.  Neptune  Ins.  Co. 

100 

Brook 

V.  Smith 

119 

Bradt  v.  Towsley 

453 

V.  White 

199 

Bradshaw  v.  Heath 

116 

Brook 

3  V.  Bridges 

495 

Bratrg  v.  Cole  . 

171 

V.  Enderby 

144 

Brainard  v.  Buck 

346 

V.  Mitchell 

212 

Braithwaite  r.  Coleman 

248 

Brook 

lyn  Bank  v.  De  Grauw 

194 

Branch  v.  Burnley 

126 

Brooks  V.  Hubbard 

491,492 

Brand  v.  CoUett 

138 

V.  Moody 

502 

Brandon  v.  Newington 

157 

V.  Stewart 

221 

V.  Hibbcrt 

138 

V.  White 

131 

Brandran  v.  Wharton 

360 

Broug 

1  V.  Witmore 

48 

Brandt  v.  Borolby 

468 

Broug 

iton  V.  Conway 

14 

Brason  v.  Dean 

186 

Brown  v.  Arrott 

467 

Braugher  v.  Nelson 

534 

V.  Berry 

158 

Braxton  v.  Wood 

349 

V.  Bridges 

351 

Braynard  ?-.  Marshall 

99, 536 

V.  Brown 

207 

Brazier  v.  Bryant 

141 

t'.  Curtiss 

307 

Breek  r.  Cole 

66 

V.  Dewey 

393 

Brecknock  Co.  v.  Pritchard 

185 

V.  Dickerson 

500 

Bree  v.  Sayler 

194 

V.  Dysinger 

151,  157 

Breed  v.  liurd 

154,  155 

V.  Galloway 

495 

Brenner  v.  Ilerr 

198 

V.  Gammon 

168 

Brent  v.  Cook 

370 

V.  Garland 

243 

V.  Green 

292 

V.  Gilmorc 

154 

Brett  V.  Brett 

113 

j;.  Hankcrson 

204 

Brettel  v.  Williams 

298 

V.  Harrison 

412,  413 

Brctton  v.  Prat 

201,210 

V.  Ilatton 

5 

Brewer  i\  Dew 

'  449 

V.  Howard 

372 

V.  Hardy 

16 

V.  HunimcU 

514 

Brewerton  r.  Harris 

240,  241 

V.  Johnson 

179 

Brewster  v.  Edgerly 

434,  439 

V.  Kewley 

135 

V.  Hough 

526,  527 

V.  Kimball 

172 

V.  Kitchin 

186 

V.  Leeson 

261 

V.  McCall's  Devisees 

74 

V.  Saul 

134 

Brcyfoylc  r.  Beckley 

381 

V.  Savage 

202  212 

Brickhouse  r.  Hunter 

206 

V.  Sax 

475,'  476 

Bridge  ;;.  Hubbard              395 

396,  399 

V.  Slater 

15 

V.  Surnucr 

239 

V.  Toell's  Adm'r 

393 

V.  Wain 

458,  487 

V.  Vawser 

212 

Bridges  v.  Mitchell 

369 

V.  Wade 

194 

Bridgeport  Bank  v.  Dyer 

51,  57,  58 

V.  Warnock 

202,  206 

Brigiit  V.  Boyd 

496 

V.  Waters 

385, 397 

V.  Ilowland 

439 

r.  Witter 

193 

Brigstocke  v.  Smith 

346 

Browne  v.  IMcvercll 

203 

Brinley  v.  Whiting 

264 

V.  Kobiuson 

248 

Brinsby  v.  Gold 

232 

V.  Stackpolo 

536 

Bristow  V.  Eastman 

129 

Browning  v.  Bcston 

20,  22 

Bristowe  v.  Fairclough 

463 

V.  IMorris 

405 

V.  Needhara 

241 

V.  Wrigiit 

3,  14,  20 

INDEX  TO   CASES   CITED. 


XVll 


Page 

Bruce  V.  Bruce                           83,  91 

199 

V.  Hunter 

423 

V.  Learned 

477 

V.  Pettengill    • 

493 

V.  Schuyler 

535 

Brundridpie  v.  Whitecomb 

245 

Brush  V.  Keeler 

262 

Bryan  v.  Bradley 

16 

V.  Horseman 

342 

344 

Bryant  v.  Commonwealth  Ins. 

Co. 

58 

V.  Hambruck 

505 

V.  Hambrick 

496 

Bryson  v.  Whithead 

256 

Buchanan  v.  Rucker 

120 

Buck  V.  Fisher 

381 

Buckingham  v.  McLean 

413 

Buckland  v.  Conway 

208 

Buckley  v.  Guildbank 

25 

405 

Buckmaster  v.  Harrop 

292 

Bufc  V.  Turner 

274 

Buford  V.  Caldwell 

272 

Bulger  V.  Roche 

103 

Bull  V.  Parker 

157 

Bullen  V.  Denning 

20 

Bullitt  V.  Musgrave 

218 

Bullock  V.  Boyd 

411 

426 

V.  Campbell 

371 

V.  Dommitt 

184 

V.  Wilson 

495 

Bulwer  v.  Home 

150 

Bunn  V.  Gray 

255 

V.  Riker                     139 

261 

262 

V.  Thomas 

25 

Burden  v.  M'Elhenny 

342 

Burdett  v.  Withers 

507 

Burdick  v.  Green 

137 

Burgess  v.  Tucker 

242 

Burgoyne  v.  Showier 

230 

Burke  v.  Haley 

292 

294 

Burleigh  v.  Stott 

363 

Burlingame  v.  Burlingame 

506 

Burn  V.  Boulton 

356 

V.  Miller 

37 

Burnaby's  Case 

241 

Burns  v.  Thornburgh 

241 

Burrhara  v.  Gentry 

386 

Burridge  v.  Fortescue 

434 

Burrough  v.  Moss 

244 

Burrows  i'.  Jemino 

82 

118 

V.  Peirce 

496 

500 

Burt  V.  Sternburgh 

235 

Burton  v.  Blin 

58 

V.  Chinn 

243 

V.  Edwards 

446 

V.  Stewart 

277 

Burton's  Case                       385 

393 

418 

Bush  V.  Canfield 

481 

V.  Livingston 

393 

395 

V.  Shipmau 

511 

Bushell  V.  Beavan 

303 

V.  Wheeler 

329 

b 

* 

Bussfield  V.  Bussfield 
Bustard's  Case 
Butcher  v.  Stewart 
Butie  V.  Falkland 
Butler  V.  Chariton  County 

V.  Hicks 

V.  Howe 

V. Inneys 

V.  Palmer 

V.  Pennsylvania 

V.  Winters 
Butterfield  v.  Jacobs 
V.  Kidder 
Button  V.  Downham 
Butts  V.  Dean 
Byers  v.  Van  Deusen 
Byrd  v.  Odem 
Byrne  v.  Crowninsb'ield 


Page 

211 

501 

76,  304 

434 

Court      510 

472 

374 

242 

515, 539 

[512 

346 

346,  350 

390 

418 

136 

203 

263 

103,  375,  377 


Cabarga  v.  Leeger  68 

Cable  V.  Dakin  479 

iJ.  Rogers  211,212 

Cabot  V.  Haskins  289 

Cadman  v.  Lubbock  1 53 

Cadwalader  v.  Howell  91,  92 

Cage  V.  Acton  222 

Cahill  V.  Bigelow  338 

Caine  v.  Horsfall  13 

Cairnes  v.  Bleeker  202 

Caines  v.  Smith  188 

Calcraft  v.  Harborough  455 

Calder  v.  Ball  534 

Caldwell  v.  Wentworth  141 

V.  West  478 

Caliot  V.  Walker  409,  411,  429 

Calkins  vi  Lockwood  324 

Calt  V.  Partridge  234 

Calton  V.  Bragg  381,  382 

Call  V.  Calef  263 

V.  Hagger  539 

V.  Scott  394 

Callahan  v.  McAlexander  205 

Cameron  v.  Boyle  443 

V.  Wynch  477 

Camp  V.  Bates  428 

V.  Pulver  267 

Campbell  v.  Butts  234 

V.  Fleming  279 

•            V.  Gittings  45 

V.  Hamilton  244,  251 

V.  Jones  41,  44 

V.  Read  395 

V.  Shields  394 

Cambioso  v.  Maffet  259 

Can  V.  Read  128 

Candler  v.  Fuller  210 

Cannel  v.  Buckle  222 

Cannell  v.  M'Clean  505,  506 

Canter  v.  Amer.  &  Ocean  Ins.  Co.    441 


XVlll 


INDEX   TO   CASES   CITED. 


Page 

Capel  V.  Thornton  126 

Capen  v.  AlJen  144 

V.  Glover  527 

Carbonel  i\  Davies  25 

Cardigarf  v.  Armitage  20 

Careless  v.  Careless  70,  74 

Carew  v.  Morthrup  248 

Cargey  v.  Aitcheson  206 

Cariss  r.  Tiittersall  229 

Carley  ;■.  Vance  ,  151 

Carlis'  V.  McLaughlin  385 

Carnochan  ?'.  Chistie  208 

Carpenter  v.  Butterfield  240,  248 

V.  Lockhart  439 

V.  Stevens  478 

Carprcw  r.  Canavan  248 

Carr  r.  Ilinchliff  249,  250 

Carrington  v.  Manning  349 

V.  Roots  315,  338 

Carruth  i'.  Paige  346 

Carruthcrs  i\  Shcddon  70 

Carshorc  v.  Iluyeli  365 

Carstairs  r.  Ste"in  387,  413 

Carter  v.  Hamilton  60,  61 

V.  Kungstead  26 

V.  Talcott  126 

V.  Toussaint  321 

V.  Walker  277 

V.  Wormald  195 

Cartwriglit  v.  Cooke  195 

Carville  r.  Crane  304 

Cary  v.  Bancroft  252 

I'.  Gruman  486 

V.  llotailing  270 

Case  r.  Barker  193 

V.  Ferris  206 

V.  Green  165 

Casell's  Care  219 

Casey  v.  Harrison  231 

Cason  V.  Ciiecly  334,  336 

Castelli  V.  Boddington  245 

Castledon  r.  Turner  75 

Castling  v.  Aubert  307,  308 

Caswell  V.  Coare  486 

V.  Wendell  498 

Cater  v.  Startute  209 

Catlin  V.  Bell  259 

V.  Ware  497 

Catling  V.  Skoulding  342,  351,  353,  369 

Caton  V.  Shaw  386 

Cavendish  r. 207 

Cawlcy  V.  Furnell  346 

Caymc  r.  Watts  206 
Chadhourn  v.  AVatts  394,  395,  398,  402 

Chaddick  v.  Marsh  439 

Chamberlain  v.  Baglcy  434 

V.  Cuylcr  353 

Chambcrlainc  v.  Turner  62 

Chamberlin  v.  Shaw  471 

Chambers  v.  Goldwin  428 

V.  Jayncs  172 


Page 

Chambers  v.  Robinson  452 

V.  Winn  160 

Champant  v.  Ranelagli  98 

Champion  v.  Plunamcr  294 

V.  Short  170 

V.  White  45 

Champlin  v.  Parish  291 

V.  Rowley  36,171 

Chandler  r.  Herrick  220 

ChanncU  v.  Ditchburn  300,  363 

Chapel  V.  Bull  503 

V.  Hickes  37 

Chapin  v.  Clemitson  14 

V.  IMcrrill  303 

('.  Warden  349 

Chaplin  v.  Rogers  321,  322 

Chapman  v.  Black  395,  396 

V.  Dalton  20,  185 

V.  Partridge  292,  294 

V.  Robertson  96,  97,  391 

V.  Sutton  297 

r.  Thames  Manuf.  Co.      493 

Chappel  V.  Brockway  257 

V.  Martin  323 

Chappie  V.  Durston  248,  379 

Charles  v.  B  ranker  150 

Charles   River   Bridge  v.  Warren 

Bridge      18,  19,  516,  518,  534 


Chase  v.  Bradley 

V.  Strain 
Chaster  r.  Trevclj'an 
Chator  v.  Beckett 
Chatzel  V.  Bolton 
Cliaurand  v.  Augerstcin 
Cheesman  v.  Ramby 
Chectham  r.  Ward 
Cheminant  r.  Thornton 
Chenot  v.  Lefcvre 
Cheriot  v.  Foussat 
Cherry  v.  Heming 
Cheshire  Bank  v.  Robinson 
Cheslyn  v.  Dalby 
Chessman  i\  Whittcmore 
Chcstcrlicld  r.  Janser 
Chestcrman  v.  Lamb 
Chcyney's  Case 
Chico])ce  Bank  v.  Eager 
Chiddick  v.  Marsh 
Child  V.  Iloiden 

r.  Sun  JNIutual  Ins.  Co. 
Childer  r.  IJeane 
Chippindale  r.  Thurston 
Chisolm  V.  Gadsden 
Chitty  V.  Naish 
Ciioicc  V.  Moscley 
Cholniondclcy  v.  Clinton 
Chomqiia  i\  i\Iason 
Christy  v.  Flcmington 
Christie  r.  Simpson 
Cliristnian  r.  ]\Ioran 
Cliristophers  v.  Garr 


13 

251 

378 

298,  299 

232 

48 

255 

222 

156 

377 

123 

319 

203 

349 

230,  231 

385,  418 

487 

71 

51 

434 

181 

48,  .54 

406,  428,  430 

170,389,  417 

274 

141,  143 

169 

14 

376 

346,351,  365 

293 

219 

376 


INDEX  TO   CASES   CITED. 


XIX 


Pa<re 


Christophers  v.  Sparkc 

341 

Church  I'.  Feterow 

1G.3 

V.  Roper 

209 

Churchill  v.  Hunt 

462 

V.  S liter 

422 

Churchwardens  of  St.  Saviour      16,  18 

City  Bank  v.  Cutter  51,  149,  153 

Claghorn  v-  CuUen  514 

Clancy  v.  Piggott  296 

Clanrickard  v.  Sidney  1" 

Chapham  v.  Moyle  23 

Clare  v.  Maynard  486,  487 
Clarence  Railway  Co.  v.  Great 

North  of  England  Railway  Co.    46 

Clark  V.  Badgley  390 

r.  Baker  31,58 

V.  Barlow  381 

V.  Bodgley  400 

V.  Burt  204 

V.  Bush  220 

V.  Clark  117,  528 

V.  Hougham  342,  344,  365 

V.  Jones  463 

V.  Man.  Ins.  Co.  274 

V.  Marsiglia  35 

V.  Moody  371 

V.  Parr  499,  500 

V.  Penddleton  310 

V.  Pendleton  319,  452 

V.  Pinney  12,  168,  472,  473,  480, 

490 

V.  Remington  175 

V.  Rogers  229 

V.  Russel  219 

V.  Shee  405 

V.  Sigourney  361 

V.  Whitaker  472 

Clarke  v.  Bradshaw  342 

V.  Dutcher  349 

V.  Spence  31 

Clarkson's  Adm'r  v.  Garland    385,  404 

Clason  r.  Bailey  287,  290 

Clay  V.  Huston  492 

V.  Smith  536 

Clayton  v.  Andrews  333 

V.  Gregson  48,  54,  56,  57 

V.  Lord  Nugent  62 

Clayton's  Case  144,418 

Cleave  v.  Jones  357 

Cleaves  v.  Foss  292 

Clegg  V.  Levy  82,  83 

Clement  v.  Clement  164 

V.  Durgin  202,  210 

Clerk  V.  Tailors  of  Exeter  254 

V.  Wright  294 

Cleworth  v.  Pickford  247 

Clifford  V.  Parker  229 

V.  Richardson  461 

V.  Turrell  66,  67 

Clinan  v.  Cooke  294,  298 

Clippinger  v.  Hepbaugh  260 


Clopper  r.  Union  Bank 
Clopton  V.  Cozart 
Clugas  V.  Peualuna 
Clute  V.  Robinson 
Coaltcr  r.  Coalter 
Coates  V.  Chaplin 
V.  Lewis 


Page 
220 
270 
82 
169 
369 
329 
126 


V.  The  Mayor,  &c.  of  New 

York  538 

Cobb  V.  Haydock  242 

V.  Selby  47 

V.  Wood  218 

Cocheco  Manuf.  Co.  v.  Whittier  18 

Cochran  v.  Retberg  48 

Cock  V.  Bunn  178 

V.  Honychurch  193 

Cocker  v.  Franklin  Manuf.  Co.        173, 

174 

Cockill  V.  Witherell  209 

Cocking  I'.  Ward  316 

Cockson  V.  Ogle  203,  204 

Codman  v.  Rogers  369 

CofRn  L'.  Coffin  371 

Cogswell  V.  Dolliver  353 

Coit  V.  Commercial  Ins.  Co.  49 

V.  Houston  151,  194 

V.  Starkweather  71 

y.  Tracy  361,364 

&  Al.  V.  Houston  166 

Coke  V.  Whorwood  201 

Colburn  i*.  Dawson  66,  76 

Colby  V.  Colby  243 

Coldham  r.  Showier  15 

Coldren  v.  IMiller  492 

Cole  V.  Blake  156 

V.  Dyer  296 

V.  Hawes  14 

V.  Jessup  377 

V.  Lockhart  411 

V.  Ross  490,  491 

V.  Taylor  67 

Coleman  v.  Upcot  290 

Coles  V.  Bowne  291 

V.  Hulme  14 

V.  Trecothick  289,  292,  294 

Colegate  v.  Bacheler  254 

Collamer  v.  Day  261 

Colledge  v.  Horn    '  •  342,  349 

Collet  V.  Podwell  209 

Collier  v.  Neville  393,  395 

CoUingburne  v.  Mantell  195 

Collinge  v.  Heywood  371 

Collins  V.  Blantenn  66 

I'.  Denison  272 

V.  Evans  271 

V.  Powell  213 

V.  Prentice  46 

r.  Roberts  397 

V.  Secreh  386 

V.  The  A.  &  S.  Railroad 

Co.  452 


XX 


INDEX   TO   CASES   CITED. 


Page 

Page 

Collins  V.  Wallis 

246 

Cooper  V.  Parker 

346 

Colpoys  i\  Colpoys 

73 

V.  Robinson 

245 

Colt  V.  Ncttcrvill 

330 

V.  Smith 

286 

V.  Partridge 

232 

V.  Turner 

341 

Colvin  V.  Corwin 

464 

Cooth  V.  Jackson 

340 

V.  Williams 

331 

Cope  V.  Cope 

26 

Colwcl  V.  Child 

206 

V.  Dodd                            50,  54,  55 

Colwill  V.  Kccves 

475 

V.  Joseph 

245 

Combs  V.  Tarlton 

504 

V.  Rowlands 

259 

Commercial  Bauk  v.  Cunningl 

am 

146 

Coppin  V.  Brathwaite         444 

446 

457 

r.  Lum 

229 

V.  Coppin 

83 

V.  Nolan 

414 

V.  Craig 

249 

250 

Com.  Bank  of  Buffalo 

480 

481 

V.  Walker 

249 

of  Natchez  v.  The  State 

Coppock  V.  Bower 

260 

of  Mississippi 

514 

Corbctt  V.  Brown 

269 

271 

Commonwealth  v.  Bacon 

512 

Core's  Case 

24 

V.  Cheney 

233 

Cornelius  r.  Vanarsdallen 

231 

V.  Churchill 

233 

234 

Cornell  i\  Green 

151 

V.  Crevor 

382 

V.  Jackson 

499 

502 

V.  Green 

122 

V.  Moulton 

177 

V.  Frost 

402 

V.  Todd 

15 

V.  Hart 

105 

Cornfoot  v.  Fowke 

277 

V.  JMann 

512 

Cory  V.  Bretton 

346 

V.  Pash 

262 

Cort  V.  Ambergate,  &c.  Railway  Co 

.188 

V.  Proprietors 

206 

Coster  V.  Murray 

368 

369 

V.  Sessions  of  Nor 

Costigan  v.  M.  &  H.  R.  R.  Co 

469 

folk 

452 

Cother  v.  Merrick 

26 

V.  Stone 

134 

Cottam  V.  Partridge           353 

367 

369 

Comstock  V.  Hutchinson 

486 

Cotterel  v.  Harrington 

417 

V.  Smith 

136 

Cotton  V.  Godwin 

157 

Compton  V.  Bearcroft 

104 

V.  Thurland 

139 

2.53 

V.  Martin 

319 

Coulter's  Case 

496 

Conard  v.  Pacific  Ins.  Co. 

450 

Counden  v.  Clarke 

71 

Conyers  v.  Ennis 

270 

Countess  of  Rutland's  Case 

61 

V.  Kenans 

378 

Couturier  i'.  Hastic 

307 

Conkling  v.  Uudcrhill 

395 

Coventry  v.  Atherton 

374 

Conolly  r.  Pardon 

74 

Cowan  V.  Braidwood 

118 

Conway  v.  Beazley 

104 

Cowell  r.  Betteley 

213 

Connecticut  v.  Jackson      147, 

428 

430 

Cowie  V.  Remfry 

289 

Conner  v.  Kobinson 

49,  .58 

Cowling  I'.  Beachum 

140 

V.  The  City  of  New  York 

512 

Cowsar  v.  Wade 

251 

Connersville  v.  Wadleigh 

270 

Cox  V.  Brain 

149 

Conolly  V.  Pardon 

62 

V.  Cooper 

248 

Connor  v.  Bellamont 

98 

V.  Jagger 

202 

Constantine  v,  Constantino 

26 

V.  Strode 

499 

500 

Cook  V.  Ellis 

450 

V.  The  United  States 

95 

V.  Hill 

452 

Coxc  V.  Gent 

206 

V.  Jennings 

28 

t'.  Lundy 

206 

V.  Martle 

1.50 

V.  State  Bank 

134 

241 

V.  Motfat 

536 

Craddock  v.  Aldridgc 

42 

V.  Stearns 

23 

Craft  V.  Isham 

175 

Cooke  V.  Tombs 

298 

Grain  v-  Beech 

463 

V.  Wliorwood 

464 

Craig  V.  Blow 

272 

Cookendorfer  v.  Preston 

51,57 

V.  Hawkins 

217 

Cooley  V.  Kosc 

147 

V.  Hewitt 

385 

Coolidgc  V.  Brigham           193, 

487 

,488 

Craighead  v.-  The  Bank 

353 

Coombe  v.  Greene 

45 

Cram  v.  Pctrie 

457 

V.  Miles 

387 

V.  Hendricks 

422 

425 

Cooper  r. 

207 

Cramp  v.  Symons 

215 

V.  Bigalow 

241 

Crane  v.  Dygert 

382 

r.  Bockett 

230 

V.  Gough 

337 

V.  Elston 

334 

V.  Hubbel 

393 

INDEX   TO   CASES   CITED. 


XXI 


Page 

Crane  v.  Eobcrts 

168 

Cranley  v.  Hillary 

148 

Craven  v.  Craven 

208 

Crawford  v.  Willing 

381 

V.  Wilson 

90,  91,  92 

V.  Sterling 

246 

Creed  v.  Stevens 

395 

Cresinger  v.  Lessee  of  Weleh  264 

Cripps  V.  Davis  350,  365 

Crisdce  v.  Bolton  435,  439 

Crist  V.  Brindle  245 

Crocker  v.  Lewis  276 
V.  The  Franklin  H.  &  F. 

Man.  Co.  47 

Crofts  V.  ALarshall  55 

Cromwell  v.  Lovett  135 

V.  Owiugs  202 

Crook  V.  Stephen  222 

Crookshank  v.  Burrell  335,  336 

Cropp  r.  Hambleton  151 

Crosby  v.  Berger  110 

V.  Wadsworth  314,  338 

Cross  V.  Peters  270 

Crossing  v.  Scudamore  17 

Crowell  V.  Davis  217 

Crozer  v.  Pilling  151 

Cruickshanks  v.  Rose  141 

Cuffi'.  Penn  67 

Culver  V.  Ashley  202 

Cumber  v.  Wayne  131 

V.  Wane  130 

Cumberland  Bank  v.  Hall  229 

Camming  v.  Forrester  246 

V.  Roebuck  294 

Cummings  v.  Banks  120 

Cummins  v.  Presley  459 

V.  Pusley  449 

V.  Williams  244 

V.  Wise  394 

Cummer  v.  Milton  94 

Cunlifte  V.  Harrison  325 

Cunningham  w.  Morrell  31,42 

Curry  v.  Larer  439 

Curtis  V.  Brown  303,  304 

V.  Gibbs  120 

V.  Groat  475 

V.  Hannay  486 

V.  Hubbard  136 

V.  Pugh  325 

V.  Ward  471 

Curtiss  V.  Greenbanks  .        165 

V.  Lawrence  443 

Cushman  v.  Blan chard  500,  501 

Cuthbert  v.  Haley  397 

Cutler  V.  Doe  438 

r.  How  394 

V.  Southern  462 
Cutter  r.  Powell                      34,  50,  171 

V.  Davenport  83 

Cuyler  v.  Cuylcr  219 

Cuyuga  County  Bank  v.  Hunt  413 

Cuyler  v.  Sanford  413 


D. 

Page 

Dakin  v.  Williams  44,  440 

Dale  V.  Cook  243 

V.  Sollet  247 

Dalrymple  v.  Dalrymplc  110 

Dame  v.  Wingate  237 

Dand  v.  Kingscotc  46 

Dandridge  v.  Harris  160 

Danforth  v.  Culver  350 

Daniel  v.  Cartony  393,  395 

Daniels  v.  Hatch  198 

Dann  v.  Spurrier  18 

Darby  v.  Mayer  83 
Dartmouth  College  v.  Woodward  509, 
510,  511,  514,  528,  530 

Dashiell  v.  Attorney- General  70 

Davenport  v.  Mason  340 

David  V.  Ransom  262 

Davidson  v.  Bridgeport  137 
V.  Cooper    223,  227,  230,  231 

V.  Geoghagan  241 

Davies  v.  Edwards  356 

V.  Humphreys  371 

Davis  V.  Carlisle  226 

V.  Crow  479 

V.  Fish  454 

V.  Garr  391 

V.  Hardacre  387 

V.  Holbrook  262 

V.  Hunt  231 

V.  Jenny  227 

V.  Lyman  503 

V.  ]\Iason  255 

V.  IMaxwcll  31,  38 

V.  Moore  324 

V.  Noaks  199 

V.  Oswell  476 

V.  Penton  435 

V.  Rowell  292 

V.  Shields  289,  480 

V.  Smith  353,  500 

V.  Steiner  349 

Dawes  v.  Pinner  428 

Dawson  y.  Ewing  151 

V.  Godfrey  514 

Day  V.  Cummings  397,  404 

V.  Dox  481 

V.  Dunham  426 

V.  Laflerty  153 

V.  Trigg  62 

V.  Woodworth  442,  449 

Dearborn  v.  Cross  67 

Deaborough  v.  Neilson  170 

Dean  V.  Allen  240 

V.  Hcwit  362,  365 

V.  James  153 

V.  Williams  147 

Dearie  v.  Barrett  149 

Dease  v.  Jones  374 

De  Barantc  i;.  Gott  110 

De  Bcil  V.  Thompson  285,  310 


xxu 


INDEX    TO    CASES   CITED. 


Page 

De  Begnis  v.  Armistcad  253 

Dc  Bernalc's  r.  FiiUor  381 
Dcbolt  V.  The  Ohio  Life  Ins.  &  Trust 

Co.  526,  527 

Decker  v.  Shaffer  304 

De  Costa  v.  Jones  202 

Dccouciic  V.  Saveticr  102,  103,  110 

Dedcrick  v.  Lcman  130 

De  Forest  v.  Leetc  503 

V.  Hunt  342 

V.  Strong  413 

Dchaly  v.  Hatch  155 

De  Havilland  v.  Bowcrbank  381 

Delano  v.  Rood  385,  386 

De  La  Vega  v.  Vianna  100,  102 

Delavergnc  v.  Norris  502,  503,  504 

Deloach  v.  Turner  346 

De  Long  v.  Stanton  203 

De  Longuemere  v.  N.  Y.  Fire  Ins. 

Co.  69 
Delver  r.  Barnes  215,  217 
Demarest  i\  Wynkoop  374 
Deming  v.  Kemp  468 
Den  V.  Farlce  228 
d.  University  of  North  Caro- 
lina V.  Foy  510 
d.  Wright  V.  "Wright  226 
Dcndy  v.  Powell  248 
Denew  v.  Daverell  246 
Denn  v.  Chubb  494 
Dennett  v.  Short  108 
Dennie  v.  Elliott  240,  241,  242 
Dennis  v.  Barber  473 
Dennison  v.  Lee  381 
Dcnnister  v.  Imhrie  430 
Denuiston  v.  Cook  262 
Denny  v.  Gilman  269 
V.  Manhattan  Co.  13 
Denton  ?;.  Embury  371,372 
Depau  V.  Humphreys  96 
Depcau  v.  Humphreys  98 
Derby  v.  Johnson  35 
r.  Phelps  316 
Descadillas  r.  Harris  136 
Deshon  v.  IMerchants  Ins.  Co.  60 
De  Sohry  v.  De  Laistre  82 
De  Sylva  ?-.  Henry  247 
Deux  V.  Jctlerics  219,  220 
Dc  Vaux  V.  Salvador  456 
Dewar  v.  Span  98 
Dewey  v.  Humphrey  149,  153 
V.  Osborne  495 
Dewint  v.  Wilste  507 
De  Witt  V.  Morris  479 
Dc  Wolf  K.  Johnson  391,  398 
Dibben  v.  Marquis  of  Anglesea  208 
Dickens  v.  Shepherd  502 
Dickenson  v.  Silwal  294 
Dickey  i'.  Linscott  171 
Dickinson  v.  Bayle  458 
r.  Bovle  498 
V.  Ila'tfield  -              349 


Page 

Dickinson  r.  Shec  154 
V.  The  Grand  Junction 

Canal  Co.  493 

Dickson  v.  Dickson  107 

V.  Thompson  342 

Didicr  v.  Davison  368,  369,  376 

Digby  V.  Atkinson  507 

Dilworth  r.  Sindcrling  381 

Dinnaick  v.  Lockwood  502 

Dinsmore  v.  Dinsmore  349,  361 

Ditchburn  v.  Goldsmith  262 

Dixon  V.  Broomfield  291 

V.Clark  150,151,157 

V.  Olmstead  253 

V.  Sinclear  239 

Dobcll  V.  Hutchinson  285 

V.  Stevens  275 

Dobson  V.  Lockhart  247 

Dodge  V.  Lean  298 

V.  Perkins  380,  382 

V.  Tileston  468 

Dodsley  v.  Varley  321 

Dodson  V.  Kayes  24 

Doe  V.  Adams  16 

V.  Allen  70 

V.  Beynon  74 

V.  Biggs  26 

V.  Bower  65 

V.  Burt  62 

v-  Cranstoun  62 

V.  Carew  70 

V.  Carpenter  64 

V.  Davis  498 

V.  Dixon  18 

V.  Dodd  20,  25 

V.  Eason  50 

t'.  Filliter  441,449 

V.  Fleming  26 

V.  Galloway  62,  64 

V.  Goldsmith  16 

V.  Gooch  417 

V.  Hare  495 

V.  Iliscocks  62,  73 

r.  Hubbard  65 

V.  Huddart  495 

V.  Martin  73 

V.  JMeyrick  1 4 

V.  Morgan  70,  71 

V.  Parkin  64 

V.  Parry  62 

V.  Salkcld  16,  17 

V.  Smitli  174 

u.  Vardill  111,112 

V.  Warren  147,  428,  430 

V.  Webster  62 

V.  Westlake  71 

V.  AVilliams  .18 

(/.  Caldwell  v.  Thorp  374 

d.  Davidson  v.  Barnard  386 

d.  Douglas  V.  Lock  23 

d.  (iord  V.  Needs  70 

(/.  Iliscocks  V.  Iliscocks  77 


INDEX'  TO   CASES   CITED. 


XXIU 


Page 

Doe  d.  Long  v.  Laming  6 

d.  Mctcalf  V.  Brown  385,  387 

d.  Milburn  v.  Salkeld  67 

d.  Shallcross  v.  Palmer  230 

d.  Tatliam  v.  Catamore      228,  229 

d.  Williams  v.  Richardson  206 

Doig  V.  Barkley  430 

Dole  V.  Stimpson  321 

Donahoe  v.  Emery  502 

Donaldson  i).  Benton  134 

Donally  v.  Wilson  145 

Donellan  v.  Eead  315,  319 

Donelson  v.  Colerain  245 

Don  V.  Lippman  100,  103,  120 

Donnell  v.  Columbian  Ins.  Co.   20,  150 

V.  Jones  449,  457,  460 

Donner  v.  Back  480 

Doolittle  I'.  Malcom  206,  208 

Doolubdass  v.  Ramloll  261 

Dorchester  v  Coventry  497 

V.  Webb  222 

Dorchester  &  Milton  Bank  v.  New 

England  Bank  51,  53 

Dorian  v.  Sammis  280 

Dorr  V.  Swartwout  375,  377 

Dorsey  I'.  Dorsey  117 

V.  Gassaway               •  143 

Doty  V.  Brown  236,  238 

Douglas  V.  Forrest  376 

V.  Patrick  151,  153 

V.  McAllister  '  481 

V.  Oldham  100 

Douglass  I'.  Ilowland  297 

V.  McChesney  385,  386 

V.  Spears  290 

V.  Vincent  311 

V.  White  131,  199 

Dow  V.  Drew  429 

V.  Tuttlo  220 

Dowd  V.  Faucett  245,  496 

Dowdall  V.  Lenox  385 

Dowdlc  V.  Camp  337 

Dowin  V.  Potter  454 

Dowler  v.  Garland  234 

Dowling  V.  Ford  363 

Down  V.  Hatcher  130 

Downer  v.  Shaw  120 

V.  Sinclair  158 

Downs  V.  Cooper  201 

V.  Ross  334 

Dowsett  r.  Sweet  62 

Dowsland  v.  Thompson  240 

Dowthwaite  v.  Tibbut  342,  344 

Dox  V.  Dey  382 

Doglcy  V.  Burton  202 

Drake  v.  Mitchell  222 

Drakcley  v.  Deforest  308 

Draper  v.  Glassop  379 

V.  Pattina  290 

Draughan  v.  Bunting  304 

Drew  V.  Power  385 

Dresser  Manuf.  Co.  v.  Waterston     475 


452 
191 
315 
235 
243 
201 
211 
127 
341 
374 
62 

1.3,  25 

43,44 

144 

107 

264 


241 

139,  140 

204 


Paige 
Drexel  v.  Man  495 

Driggs  V.  Dwight  458,  505 

Drinkwater  v.  Goodwin  126,  249 

Drue  V.  Thorne  111 

Drummond  v.  Burrell  316 

Drury  v.  Strong  500 

Dry  V.  Dox  43 

Dry  Dock  Bank  v.  Amer.  Life  Ins. 

&  Trust  Co.  386,  427 

Dublin  V.  Murphy 
Dubois  V.  Delaware  Canal  Co. 

V.  Kelly 
Duchess  of  Kingston's  Case 
Duckworth  v.  Alison 
Dudley  v.  Mallery 

V.  Nettlefold 
Duffy.  The  East  India  Co. 
Duffield  V.  Creed 
Dugan  V.  Gittings 
Duke  of  Dorset  v.  Lord  Hawarden 

Northumberland  v.  Errin; 

ton 
St.  Albans  v.  Shore 
Dulles  V.  De  Forest 
Dumarcsly  v.  Fishly 
Dunbar  v.  McFall 
Dunbarr  v.  Bonesteel 
Duncan  v.  Bloomstock 

V.  Cafe 

V.  Duncan 

V.  Hodges  230 

V.  Maryland  Savings  Insti- 
tution 407,411 
Duncuft  V.  Albrecht  330 
Dundas  v.  Dundas  83 
Dunhan  v.  Lodge  362 
V.  Gould  427 
Dunklee  v.  Locke  242 
Dunlap  V.  Hunting                              164 

V.  Higgins  481 

Dunlop  V.  Grote  485 

V.  Higgins  473 

Dunraan  v.  Strother  261 

Dunn  V.  West  213,  303 

V.  Murray  211 

Dunne  v.  Ferguson  313 

Dunning  v.  Chamberlain  376 

V.  Merrill  397 

Dunseth  v.  Bank  of  United  States    497 
Dupleix  V.  De  Koven  102 

Duport  V.  Wildgoose  204 

Durand  v.  Carrington  234 

Durliam  v.  Maurow  307 

Dutton  V.  Hutchinson  368 

V.  Solomonson  486 

V.  Tilden  67 

Duvall  V.  Farmers'  Bank  407 

V.  Farmer's  Bank  of  Maryland  55 

Dyer  v.  Dorsey  505 

V.  Hunt     ^  82 

V.  Rich  182 

Dyott  V.  Letcher  369 


XXIV 


INDEX   TO   CASES   CITED. 


rage 

E. 

Eliott  V.  Giesc 

297 

V.  Green 

137 

rage 

V.  Gurr 

109 

Eager  i'.  The  Commonwealth 

374 

V,  Minott 

381 

Eagle  Bank  v.  Smith 

134 

V.  Thomas 

324 

Eaglcson  r.  Shotwell 

386 

Ellis  V.  Clunnock 

487 

Earl  of  Bedford  v.  Bisliop  of  Ex- 

V. Ilamlen 

37 

eter 

232 

r.  Paige 

173 

Bristol  V.  Wilsmorc 

2G'J 

v.  Thompson 

47, 173,  174 

Chesterfield  v.  Jansen 

415 

V.  Warnes 

397 

Falmouth  v.  Tliomas 

314 

Elmcndorf  r.  Harris 

218 

Shrcwsbur}'  v.  Gould 

20 

Elmore  v.  Kingscote 

295 

Earl  V.  Stoeker 

207 

V.  Stone 

321,  322 

Earle  v.  Dickson 

378 

Eltliam  V.  Kiiigsman 

139 

East  Hartford  i:  Hartford  Bridge  Co.  512 

Elton  r.  Larkins 

268 

India  Co.  r.  rrincc 

342 

Ely  V.  McClung 

385 

Eastman  v.  Wriirlit 

222 

Embree  i:  Ilanna 

119 

Easton  Bank  v.  Commonwealth        527 

Emdin  v.  Darley 

242 

Eastwood  V.  Kenyon          301, 

302,  307 

Emerick  v.  Sanders 

304 

V.  Saville 

357 

Emerson  ?'.  Baylies 

244 

Eaton  V.  Bell 

409,  429 

Emery  v.  Emery 

209 

V.  Lincoln 

131 

V.  Ilitchcoek 

203 

V.  Lj-on 

6 

V.  Owings 

218 

V.  Smith 

5,  6 

V.  Wase 

209 

Edan  v.  Dudfield 

150 

Ernes  V.  AViddowson 

197 

Eddowes  i\  Hopkins 

382 

Emmens  v.  Elderton 

180 

Edelen  v.  Gough 

297 

Emmerson-  v.  Heelis 

292,  314 

Edgar  v.  Bois 

490 

Emory  v.  Grccnough 

118 

V.  Boies 

41 

Endcrbey  v.  Gilpin 

420 

Edgell  V.  IVlcLaughlin 

261 

Enfield  toll  Bridge  Co.  v 

.  Hartford 

V.  Stanford 

393 

&  New  Haven  R.  R. 

Co.          518, 

Edgerton  i\  Clark 

495 

520,  522,  523 

Edie  V.  East  India  Co. 

55 

England  v.  Davison 

206 

Edis  V.  Bury 

21 

Ennis  v.  Waller 

293 

Edmiston  v.  Wright 

468 

Entz  V.  Mills 

293 

Edmond  r.  Caldwell 

136 

Erskinc  v.  Plummcr 

314 

Edward  v.  Martin 

500 

Erwin  v.  Blake 

126 

Edwards  v.  Ciiajjman 

193 

V.  Saunders 

66 

V.  Goldsmith 

5,  66 

Erving  r.  Blount 

471,  473 

V.  Ilodding 

140 

Esterly  i\  Cole 

380.  381 

V.  Kelly 

309 

Estill  V.  Yaul           , 

239 

V.  Owen 

267 

Estis  V.  Kawlins 

376 

V.  Parkhurst 

264 

Evans  v.  Ashley 

293 

?'.  Skirving 

397 

V.  Bell 

263 

V.  Temple 

248 

V.  Davies 

356 

V.  Williams 

439 

V.  Eaton 

509 

Egerton  v.  Furzeman 

261 

V.  Jones 

262 

V.  Mathews 

290,  296 

V.  Montgomery 

534 

Egleston  v.  Knickcrbackcr 

67 

V.  Neglcy 

385 

Ehringhaus  v.  Ford 

386 

V.  Powis 

195 

Eichclbcrger  v.  Barnitz 

273 

V.  Pratt 

48 

Eicke  r.  Nokcs 

351 

V.  Prosser 

248 

Ekins  r.  East  India  Co. 

98 

V.  Kol)ert3 

313 

Eland  v.  Karr 

248 

V.  Sanders 

17 

Elder  v.  True 

502 

V.  Tweedy 

349 

Eld  ridge  v.  Rowe 

38 

Eve  V.  Moseley 

199 

Elfc  V.  Gadsden 

293 

Everett  v.  Collins 

135 

Eigar  r.  Watson 

150 

i:  Desborough 

268 

Elkin  V.  Moore 

381 

Evcrnghim  i:  Ensworth 

244 

Elkins  V.  I'arkhurst 

163,  168 

Ewen  V.  Terry 

241 

Ellery  v.  Cunningham 

382 

Ewer  V.  Coffin 

123 

Ellicot  V.  Kichols 

34G 

Ewin,  in  re 

83 

INDEX  TO  CASES  CITED. 


XXV 


Ewing  I'.  Bailey 
Exeter  Bank  v.  Sullivan 
Eyles  V.  Ellis 
Eyre  v.  Marine  Ins.  Co. 


F. 

Fackler  v.  Fackler 
Eairchild  v.  Holly 
Ealconer  v.  Montgomery 
Falmouth  v.  lloberts 
Fame  v.  Dawson 
Fannin  v.  Anderson 
Fanning  v.  Consequa 

V.  Dunham 
Farebrothcr  v.  Simmons 
Farira  v.  Hone 
Faris  v.  King 
Farmer  v.  Sewall 

V.  Stewart 
Farmers'  Bank  v.  Mackie 
Farmers  &  Mechanics'  Bank  v. 

Planters'  Bank  368 
Farm.  &  Mech.  Bank  v.  Wilson        365 
Farnsworth  v.  Garrard  246 
Farrar  v.  Alston  ■2&9,  270 
Farrington  v.  Lee  3G7,  369 
V.  Payne  132 
Fanvell  v.  Eogers  177 
Faulkner  v.  Lowe  186 
Favenc  v.  Bennett  126 
Faviell  v.  Eastern  Counties  Kail- 
way  Co.  215 
Fay  V.  Bradley  147 
Fearn  v.  Lewis  346 
Feaubertr.  Turst  HO 
Fellows  V.  Fellows  116 
Fenly  v.  Stewart  291 
Fenno  v.  Sayre  395 
Fenton  y.  Clark  171 
V.  Emblers  318,  370 
Fercday  v.  Ilordern  420 
Feret  v.  Hill  268 
Ferguson  v.  Carrington  269,  278 
V.  Lothrop  244 
f.  Mahon  118 
Fergusson  v.  Fuffe  98 
Ferrall  v.  Shaen  392,  394 
Ferrand  v.  Bouchell  452 
Ferry  v.  Ferry  147,  430 
Field  V.  Dickenson  378 
V.  Holland  143 
Files  V.  McLeod  307 
Finth  V.  Brook  154 
V.  Brown  459 
Finch's  Case  25 
Findon  v.  Parker  263 
Fink  V.  ILake  244 
First  Massachusetts  Turnpike  Corp. 

V.  Field           '  378 

VOL.  II.  C 


Page 

Page 

177 

Fish  V.  Dodge 

443 

363 

V.  Kempton 

248 

137 

Fisher  v.  Beasley 

400 

49 

V.  Kay 

505 

V.  Lacky 

532 

V.  Lane 

100 

V.  Prince 

481 

V.  Waltham 

261 

378 

Fishmongers'  Co.  v.  RobertsoB 

44 

144 

Fitch  v.  Hamlin 

390 

217 

V.  Livingston 

459 

226 

V.  Sutton 

130 

340 

Fitt  V.  Cassanet 

190, 193 

377 

Fitzroy  v.  Gwillim 

253,  404 

95,  98 

Fitzsimmons  v.  Joslyn 

270, 277 

404,  426 

Fivaz  V.  Nichols 

252 

292 

Flagg  V.  Dryden 

160 

323 

Flechner  v.  U.  S.  Bank 

395,411 

395 

Fleming  v.  Gilbert 

67 

422,  425 

V.  Potter 

162 

218 

V.  Slocum 

274 

476 

Flemington  v.  Smithers 

444 

Fletcher  v.  Button      169,  504,  505,  506 
V.  Commonwealth  Ins.  Co. 

274 

V.  Dyche  243,  435,  441 

V.  Harcot  252 

V.  Peck  509,  530 

V.  Pynsett  183 

Flight  V.  Bollard  290 

V.  Leman  262 

Flint  V.  Clark  494 

Floyer  v.  Edwards,  385,  394,  402,  410, 

437,438 

V.  Sherard  417 

Flureau  v.  Thornhill  503,  504,  505 

Fobes  V.  Cantfield  428 

Foden  r.  Sharp  98 

Foley  V.  Cowgill  275 

Foltz  V.  Mey  395 

Founshill  v.  Murray  107 

Fooks  V.  Waples  272 

Foote  V.  Burnet  500,  502 

r.  Emerson  253,316 

Fogg  V.  Sawyer  134 

Forbes  v.  Foot  378 

V.  Skelton  368 

Ford  V.  Ford  1 1 1 

v.  Jones  219 

V.  Tiley  179,  180,  188 

V.  Yates  57 

Fordley's  Case  153 

Foreman  i'.  Hardwick  262 

Forquct  v.  Moore  314 

Forrest  v.  Elwes  389 

Forster  v.  Halo  298,  340 

Forsaith  v.  Clogston  237 

Foster  v.  Charles  271 

V.  Dawber  354 

V.  Hodgson  369 

V.  Jack  373 


XXVI 


INDEX   TO   CASES   CITED 


Page 

Foster  v.  Jackson 

■241 

V.  Jolly 

66 

r.  McDivit 

237 

V.  IMcO'Blcnis 

318 

V.  Trull 

197 

Fotherjiill  v.  Walton 

44 

rountain  v.  Grymes 

417 

Fournicr  v.  Fajrgott 

443 

Fowkc  V.  Bowie 

142 

Fowle  r.  Freeman 

290 

Fowler  v.  Garlike 

70 

r.  Garret 

398 

V.  Gilman 

471 

V.  Hunt 

375 

V.  Ludwig 

136 

Fox  r.  risk 

369 

V.  Harding 

460 

r.  Smith               202 

206,  210 

,211 

Francis  v.  Dodsworth 

248 

Franklin  v.  Miller 

44 

,  191 

V.  Vanderpool 

136 

Frary  v.  Frary 

113 

,  117 

Frascr  v.  Berkeley 

455 

V.  Pigott 

13 

Franchat  v.  Leach 

50G 

Frazer  v.  Bunn 

142 

V.  Gervais 

273 

Freake  v.  Cranefeldt 

349 

Freakley  v.  Fox 

222 

Frear  v.  Hardenbergh 

314 

Freeman  v.  Baker 

271 

V.  Baspoule 

203 

,  206 

V.  Brittin 

395 

425 

V.  Clute 

459 

486 

V.  Freeman 

116 

V.  Ilyett 

240 

Freemoult  v.  Dedire 

110 

French  v.  Grindle 

422 

425 

V.  Kennedy 

147 

Freleigh  v.  The  State 

538 

Frentrcss  v.  Markle 

194 

Fricker  v.  Thomlinson 

287 

Frizzle  v.  Veach 

264 

Frost  V.  Bengough 

342 

349 

V.  Brisbin 

92 

V.  Hill 

293 

V.  Johnson 

194 

V.  Lowry 

278 

Frontier  Bank  v.  Morse 

134 

Frothingham  v.  Everton 

466,  4G7, 

493 

V.  Haley 

202 

Fry  V.  Evans 

243 

Frye  r-  Barker 

361, 

393 

Fryer  v.  Koe 

370 

FuUan  v.  Valentine 

220 

Fuller  V.  Brown 

171 

V.  Crittenden 

67 

V.  Fenwick 

215 

V.  Hodgdon 

269 

V.  Little 

154 

V.  Wilson 

277 

I'.  Wright 

• 

245 

Page 

Fuller's  Case 

417 

Fulton  Bunk  v.  Beach 

404 

Fulton's  Case 

230 

Furlongs  v.  PoUeys 

453 

Furman  v.  Elmore 

500 

Furnis  v.  Hallon 

206 

,209 

Furnival  ?'.  Weston 

222 

Purser  v.  Prowd 

209 

Fussil  V.  Brookes 

394 

G. 

Gabay  r.  Lloyd 

54,  57 

Gaillard  v.  Le  Seigneur 

395 

Gainsford  v.  Carroll 

481 

V.  Grammar 

342 

Gaither  v.  Farmers  &.  Mech 

inics' 

Bank 

393 

,  395 

Galbraith  v.  Neville 

120 

Gale  V.  Capcrn 

365 

V.  Eastman 

391 

V.  Moltram 

201 

t'.  Nixon 

285 

V.  Iveed 

255 

Gallini  v.  Lahorie 

253 

Galloway  v.  Webb 

210 

Galsworthy  v.  Strutt 

437 

,439 

Galusha  v.  Cobleigh 

378 

Galvin  v.  Thompson 

202 

Gambril  v.  Rose 

394 

Games  v.  Manning 

162 

,  165 

Gammell  v.  Skinner 

381 

Gammon  v.  Freeman 

66 

V.  Howe 

'441 

Garbutt  v.  Watson 

334 

335 

Gardiner  v.  Davis 

126 

Gardner  v.  Allen 

249 

V.  Buckbee 

235 

V.  Flagg 

393 

402 

V.  Joy 

334 

335 

t'.  M'Mahon 

349 

V.  Nolen 

262 

Gardom,  ex  parte 

295 

Garland  v.  Noble 

203 

(jarnctt  v.  Macon 

219 

Garnier  v.  Poydras 

111 

Garrard  v.  Zachariah 

165 

Garret  v.  Taylor 

128 

V.  Foote 

393 

415 

Garrow  v.  Carpenter 

247 

Gaskell  v.  Morris 

484 

Gaslight  Co.  v.  Turner 

252 

Gass  V.  Stinson 

144 

Gathings  v.  Williams 

109 

Gaulden  v.  McPhaiil 

449 

Gaylord  v.  Gaylord 

208 

Gazlcy  ?".  Price 

45, 

169 

(ieary  v.  Physic 

290 

Gedddes  v.  Pennington 

266 

Gciscr  V.  Kcrshncr 

130 

George  v.  Clagett       * 

249, 

250 

V.  Gillespie 

235 

INDEX   TO   CASES   CITED. 


XXVll 


George  v.  Johnson 
Gerhard  v.  Bates 
Getchell  v.  Ileald 
Gibbs  V.  Bryant 
V.  Chisolm 
Gibbes  v.  Mitchell 
Gibson  v.  Gibson 

V.  Livesey 

V.  Minet 

V.  Powell 

V.  Stearns 

V.  Stevens 

V.  Winter 
Gifford  V.  Whittaker 
Gihon  V.  Fryatt 
Gilbert  v.  Richardson 

V.  Sykes 

V.  Wiman 
Gilchrist  v.  Leonard 
V.  Williams 
Gildart  v.  Gladstone 
Giles  V.  Hart 

V.  O'Toole 
Gilkyson  v.  Larue 
Gill  V.  Cole" 

•  V.  Shelley 
Gillei5pie  v.  Battle 

V.  Creswell 
Gillighan  v.  Boardnian 
Gilliugham  v.  Gillingham 

V.  Waskett 
Gilman  v.  Cutts 

V.  Hall 

V.  Kibler 

V.  Moore 

V.  Peck 
Gilmore  v.  Bussey 

V.  Holt 
Gilpin  V.  Consequa 
Gilpins  V.  Consequa 
Gilrcath  v.  Allen 
Girard  v.  Faggart 
Girand  v.  Richmond 
Glaister  v.  Hewer 
Glaholm  V.  Hays 
Glascott  V.  Day 
Glascbrook  v.  Woodrow 
Glasfurd  v.  Laing 
Glasscott  V.  Day 
Ghissington  v.  Rawlins 
Gleason  v.  Dodd 
Glenn  v.  McCullough 
Glezen  v.  Rood 
Gloucester  Bank  v.  Salem 
Glover  V.  Barrie 
Goblet  V.  Becchey 
Godard  v.  Benjamin 
Goddard  v.  Cox 

V.  Hodges 

V.  Ingram 
Godfrey  v.  Forrest 
GofF  y.'Rehoboth 


Bank 


Page 

Page 

274 

Goings  I'.  Mills 

130 

276 

Goix  V.  Law 

119 

361 

Golden  v.  Prince 

531 

381 

Goldsborough  r.  Orr 

41 

430 

Goldshede  v.  Swan 

7c 

,297 

240 

Golightly  V.  Jellicoe 

211 

220 

Gomez  v.  Garr 

202 

411 

Gooch  V.  Br3-ant 

228 

7 

Goodall's  Case 

27 

207 

Good  V.  Cheesman 

195 

397 

,  406 

V.  Elliott 

261 

324 

V.  Good 

251 

129 

V.  Mylin 

442 

195 

Goode  V.  Waters 

208 

242 

Goodenow  v.  Buttrick 

240 

,  241 

458 

Goodinge  v.  Goodinge 

74 

262 

,319 

Goodisson  v.  Nunn 

506 

462 

Goodlead  v.  Blewith     , 

151 

240 

Goodloe  V.  Clay 

381 

248 

Goom  V.  Aflalo 

294 

19 

Goodman  v.  Pocack 

35 

149 

Goodnow  V.  Smith 

199 

458 

,  459 

Goodrich  v.  Lafflin 

190 

346 

Goodtitle  v.  Bailey 

15 

495 

V.  North 

495 

13 

V.  Southern 

62 

315 

V.  Tombs 

495 

371 

Goodwin  v.  Cremer 

130 

297 

V.  Holln-ook 

164 

188 

346 

,  365 

Gordon  v.  Appeal  Tax  Court 

526 

245 

V.  Baltimore 

527 

377 

V.  Bowne 

245 

172 

V.  Church 

248 

297 

V.  Jenney 

478 

159 

163 

V.  Parker 

492 

134 

V.  Strange 

133 

136 

V.  Tucker               202, 

208 

210 

155 

158 

Gore  V.  Brazier 

497 

500 

481 

Gorst  V.  Lowndes 

177 

185 

Gosbell  V.  Archer 

289 

449 

Goss  V.  Lord  Nugent 

4 

484 

V.  Turner 

168 

316 

Goswiler's  Estate 

177 

242 

Gould  V.  Banks 

153 

39 

V.  Parlin 

240 

154 

Goudy  V.  Gebhart 

279 

506 

V.  Gillam 

361 

405 

Gough  V.  Staats 

135 

155 

Gourdine  v.  Graham 

374 

177 

Governor  &  Company  of  the  Cast 

123 

Plate  Manufacturers  v.  Mere- 

342 

dith 

522 

493 

Govett  V.  Richmond 

201 

k 

135 

Gowen  v.  Forster 

354 

209 

Gower  v.  Saltmarsh 

439 

68 

Grable  v-  Margrave 

449 

130 

Grace  v.  Morgan 

441 

141 

142 

Graddon  v.  Price 

183 

142 

Graham  v.  Bickham 

441 

363 

V.  Graham 

218 

249 

V.  Jackson 

485 

151 

381 

V.  Musson 

291 

294 

XXVIU 


INDEX  TO   CASES    CITED. 


Pago 

Grammar-School  v.  Burt 

514 

Granby  v.  Amherst 

91 

Grani^cr  i:  George 

372 

Granite  Railway  Co.  i'.  Bacon 

226 

Grant  i*.  Fletcher 

294 

r.  Ilamiltoii 

261 

I'.  Johnson 

42,  44 

I'.  Madclox 

48,  59 

V.  Eoyal  Exchango  Ass 

.  Co.  244, 

245 

Gratz  V.  Gratz 

204 

Graves  v.  Dale 

232 

V.  Ilarwood 

67 

V.  "Weeks 

376 

V.  "Woodbury 

240 

Gray  f.  Behlen 

385 

V.  Briscoe                    499 

501,  502 

V.  Clark 

13,  25 

V.  Crosby 

437 

V.  Fowler 

393 

V.  Gutteridge 

140 

V.  Mendez 

374 

V.  Munroe 

532 

V.  Portland  Bank 

473,  480 

V.  Wass 

126 

Gray's  Ex'rs  v.  Brown 

390,  399 

Greaves  v.  Ashlin 

47 

Greely  v.  Smith 

239* 

Green  r.  Armstrong 

314 

r.  Bcatty 

129 

V.  Biddle 

496,  530 

V.  Button 

457 

V.  Clark 

238 

V.  Cresswell 

303 

V.  Eales 

508 

V.  Farmer 

471,475 

V.  Gosden 

267 

V.  Kemp 

399 

V.  Lowell 

127 

V.  Mann                    455, 

461,  508 

V.  Trice 

256 

V.  Rivett 

344 

V.  Shurtliflf 

149 

Greene  v.  Bateman 

483 

V.  Dinglcy 

174 

Grcenfell  v.  Girdlcstonc 

365 

Green  Held  Bank  v.  Lcavitt 

471 

Grecnhow's  Adm'x  v.  Harris 

386 

Greening  v.  Wilkinson 

473,  481 

Greenland  v.  Chaplain 

456 

Greenlaw  v.  Greenlaw 

117 

Grcenleaf  y.  Kellogg 

147 

V.  Quincy 

361 

Greenough  v.  Rolfc 

£15 

Greenwood,  in  re. 

219 

V.  Curtis 

107,  108 

V.  Lidbettcr 

199 

Gregson  v.  Ruck 

294 

Gregg  V.  James 

127 

Gregg's  Case 

434 

Gregory  v.  Ilurrill 

375 

V.  McDowell 

482 

Page 

Grew  r.  Burditt  244 

Grier  v.  Grier  206 

Grifiin  v.  McKenzio  539 

Griffiths  V.  Owen  195,  196,  354 

Grimman  V.  Leggo  172 

Gross  V.  Criss  49 
Grosvenor  v.  Flax  &  Ilemp.  Manuf. 

Co.  .               386,  387 

Groves  V.  Graves  393 

V.  Buck  336 

Grysiel  v.  Whichcott  409 

Guard  v.  Whiteside  220 

Guernsey  v.  Carver  464 

Guichard  v.  Superveile  370 

Guier  v.  O'Daniel  94 

Guier's  Case  25 

Guille  V.  Swan  458 

Guillod  I'.  Nock  150 

GuUett  I'.  Lewis  126 

Gully  V.  Gully  26 

Gunter  v.  Halsey  340 

Gutteridge  v.  Munnyard  508 

Guthrie  v.  Paysley  501 

Guy  V.  Sharp  73 

V.  Tams  349 

Gwin  V.  Whitaker  143 

G  wy  n ,  ex  parte  411,  412 

Gynes  v.  Kemsley  62 


Haas  V.  Flint  411 

Hackley  v.  Spraguo  394,  396 

Had  ley  u.  Clarke  187 

Half  y.  Nicherson  23 

Haffcy  V.  Birchetts  500 

Ilag^'crston  v.  Ilanbury  16 

Haig^i  V.  Brooks  76,  297 

Hair  V.Bell  172 

Hakes  v.  Hotchkiss  61 

Haldaue  v.  Johnson  148 

Hale  V.  James  497 

Hall  V.  Campbell  81 

V.  Cazenove  66 

V.  Cook  251 

V.  Daggett  411 

V.  Deau  502,  503 

V.  Floeton  197 

V.  Hill  65 

V.  Little  376 

V.  Odber  120,  123 

V.  Ody  241,  242 

V.  Ruj)lcy  35 

V.  Seabright  194 

r.  Sniallwood  200 

V.  Williams  121 

Hallcn  /•.  Runder  314 

llulliday  ('.  Ward  365 

llalloway  i'.  Davis  45 

Hallowcil  V.  Howard  157 

V.  Saco  91 

Bank  v.  Howard  246 


INDEX   TO   CASES   CITED. 


XXIX 


Page 

Page 

Halsay  v.  Brown 

50 

Harris  v.  Osboum 

373 

Hamakcr  v.  Eberly 

219 

V.  Porter 

317 

Hambletou  v.  Veere 

463 

V.  Palmer 

242 

Hamilton  v.  Benbuiy 

141 

V.  Reynolds 

195 

Hammatt  v.  Emerson 

275 

V.  AVilson 

203 

Hammersley  v.  De  Beil 

310 

Harrison  v.  Bainbridge 

242 

V.  Knowlys 

143 

V.  Berkley 

457 

Hammett  v.  Yea 

385 

,411 

V.  Harnei 

399 

Hammond  v.  Anderson 

324 

V.  Harrison 

473 

,  480 

V.  Hopping 

39C 

,398 

V.  Young 

518 

V.  Smith 

393 

,  394 

Hart  V.  Darman 

147 

Hampshire  v.  Pierce 

77 

V.  Granger 

232 

Hampton  v.  McConncl     . 

120 

122 

V.  Nash 

353 

Hamrick  v.  Hogg 

'  274 

V.  Prendcrgast 

346 

,348 

Hancock  v.  Hodgson 

385 

V.  Sattley 

328 

V.  Eeede 

208 

V.  Tallmadge 

271 

Handley  v.  Chambers 

504 

V.  Woods 

293 

Hanford  v.  Rogers 

66 

Harteau  v.  Harteau 

112 

,  117 

Hanover  v.  Turner 

116 

Hartley  v.  Cummings 

256 

Hansbrough  i-.  Baylor 

422 

,  423 

y.  Herring 

453 

Hanson  v.  Armitage           325 

,  328 

,  330 

V.  Rice 

262 

V.  Buckner 

500 

Hartnell  v.  Hill 

208 

Hanna  i:  Harter 

482 

Harvard  College  v.  Gore 

91 

r.  Mills 

486 

Harvey  v.  Archbold 

98 

391 

Hannay  v.  Eve 

259 

V.  Richards 

83 

,  235 

Harbin  v.  Levi 

244 

V.  Snow 

494 

Harbold  v.  Kuntz 

349 

V.  Turner 

467 

Hardcastle  v.  Nethervrood 

245 

Hasbrook  v.  Paddock 

73 

Harden  v.  McClure 

336 

Hasket  v.  Wootan 

261 

Hardey  v.  Cos 

199 

Haskins  v.  Lombard 

232 

,234 

Harding  v.  Alden 

113 

117 

Hastelow  v.  Jackson 

139 

V.  Davis 

151 

Hastings  v.  Wiswall            147 

428 

430 

V.  Davies 

155 

V.  Whitley 

256 

V.  Wallace 

218 

Hatsall  V.  Griffith 

128 

Hardman  v.  Hardman 

26 

Hatton  V.  Gray 

290 

V.  Bellhouse 

198 

Hatzfield  v.  Gulden 

260 

Hardy  v.  Carlis 

248 

Haughtaling  v.  Haughtaling 

315 

V.  Innes 

207 

Haule  V.  Herayng 

183 

V.  Nelson 

442; 

500 

Havelock  v.  Geddes 

44 

V.  Ryle 

176 

Havens  v.  Bush 

42 

V.  Waltham 

527 

Haverly  v.  Leighton 

183 

Hare  v.  Hortou 

28 

Hawes  v.  Armstrong 

297 

Harford  r.  Morris 

110 

V.  Forster 

294 

Hargor  r.  M'Mains 

473 

Hawkins  v.  Barney 

530 

Hargons  v.  Ablon 

458 

V.  Chace 

291 

Hargrave  v.  Dusenberry 

134 

V.  Colclough 

204 

V.  Smee 

3,21 

V.  Holmes 

287. 

Hargreaves  i\  Hutchinson 

387 

404 

V.  Keep 

506 

V.  Parsons        302, 

303, 

307 

V.  Rutt 

133 

Harman  v.  Anderson 

323 

Hawley  i\  Poote 

195 

Harlow  v.  Thomas 

503 

Hay  V.  The  Cohoes  Co. 

444 

Harper  r.  Calhoun 

246 

Haycraft  v.  Creasy 

271 

V.  Hampton 

200 

Hayden  v.  Cabot 

461 

Harrell  v.  Kelly 

378 

V.  Madison 

37 

HaiTington  v.  Kloprogge 

12 

Haydon  v.  Williams 

346, 

365 

V.  Long 

262 

Hayncs  v.  Holliday 

48 

Harris  r.  Boston 

412 

Hays  r.  Riddle 

476 

r.  Curnow 

207 

Hayward  v.  Cuthburt 

497 

V.  Delamar 

277 

V.  Leonard 

36 

V.  Jones 

508 

V.  Middleton 

53 

V.  Mitcbel 

C* 

219 

V.  Young 

256 

XXX 


INDEX   TO   CASES   CITED. 


Page 

Hazard  v.  Irvin  280 

V.  Smith  397 

Hazen  v.  Addis  205 

Hazlcbaker  r.  Reeves  349 

Healey  v.  Spence  200 

Heancy  v.  iU'cney  455 

Heard" I'.  Bowers  437,  439 

Heck  V.  Shener  246 

Heekslier  ?'.  McCrea  469 

Helm  V.  Bryant  60 

V.  Wilson  37 

Helps  V.  Winterbottom  370 

Hemingway  v.  Hamilton  268 

Hemp  I'.  Garland  373 

Henderson  v.  Blancliard  381 

V.  Barnewall  291 

V.  Henderson  118,  502 

V.  Johnson  297 

V.  Lewis  245 

V.  Moore  130 

Henfree  v.  Bromley  212,  225 

Henman  v.  Dickinson  229 

Hennell  v.  Fairlamb  251 

Henniker  v.  Wigg  144 

Henning's  Case  183 

Henry  v.  Goldney  231 

V.  Means  374 

llenson,  ex  jiarie,  411 

Hepburn  v.  Sewell  472 

Herbert  i-.  Cook  120 

V.  Herbert  107 

r.  Pigott  222 

Herman  v.  Goodrich  479 

Herrick  v.  Herrick  212 

V.  Moore  503 

V.  Randolph  526,  527 

Herries  v.  Jamicson  147 

Herrin  y.  Butters  317 

Herring  v.  Pollard  496 

Heseltine  v.  Siggers  330 

Hcsketh  v.  Fawcett  157 

Hesse  v.  Stevenson  14 

Heydon  &  Smith's  Case  477 

Hcyman  v.  Neale  294 

Heyling  v.  Hastings  342 

Hey  tie  v.  Logan  '   385 

Heyward's  Case  20 

Hey  wood  V.  Pcrrin  13 

Hibblcwhitc  v.  McMorinc  230 

Hibsliman  v.  Dulleban  235 

liickerson  v.  Benson  262 

Hickey  v.  Burt  129 

Hickok  V.  Buck  477 

V.  Hickok  371 

Hicks  V.  Hankin  292 

!'.  Hotchkiss  535,  536 

Hide  V.  Petit  201 

Higgins  V.  Emmons  164 

Iligbt  V.  Ripley  334 

Hililcbraiid  i'.  Foglc  73 

Hill  V.  Bellows  376 

V.  Buckminstcr  66 


Hill  V.  Calvin 
V.  Dunlap 
V.  Grange 
V.  Green 
V.  Henry 
V.  Hobart 
V.  Kendall 
V.  Thorn 
Hills  V.  Barnes 
V.  Miller 
Hilton  V.  Burley 
Himes  v.  Barnitz 
Ilinchliffe  v.  Earl  of  Kinnoul 
Hinckley  v.  Arey 

i\  Southgate 
Hinde  v.  Whitehouse 

V.  Gray 
Hindle  v.  O'Brien 
Hindman  v.  Langford 
Hinkley  v.  INIareau 
r.  Marian 
Hinton  v.  Locke 
Hirn  v.  State  of  Ohio 
Hitchcock  V.  Coker 

et  al.  V.  Aicken  , 
Hitchin  v.  Groom 
Hixon  V.  Hixon 
Hoadly  ik  M'Laine 
Hoag  V.  McGinnis 
Hoagland  v.  Moore 
Hoard  V.  Garner 
Hoblin  V.  Kimble 
Hoby  V.  Roebuck 
Hochster  v.  DeLatour 
Hodge  V.  Manley 
Hodges  V.  King 
V.  Lovat 
Hodgkins  v.  Bond 
Hodsden  v.  Harridge 
Hodgdon  v.  Hodgdon 
Hodgson  V.  Bell 

V.  Davies 
V.  Hodgson 
V.  Temple 
V.  Le  Bret 
Hodson  V.  Tcrrill 

in  re, 
Hoey  I'.  Turman 
Iloft'man  v.  Bro^\^l 
Hoggins  V.  Gordon 
Hoit  V.  Hodge 
Hoitt  V.  Holcomb 
Holbrook  v.  Armstrong 
V.  Burt 
V.  Lackey 
Holcomb  V.  Stimpson 
lloiiling  V.  Pigott 
IloHbrd  r.  Blatchford 
Hoi  yoke  i\  Haskins 
Holir.  Hadley 
Holland  v.  Pelham 
Ilollis  V.  Morris 


Page 

227 

234 

20 

190 

371 

47,  169,  174,  505 

346,  350,  366 

202 

229 

15 

143 

247 

46 

199,  292 


316 

292,  324 

256 

404 

306 

536 

102 

51,  56,  59 

536 

256 

121 

5,  73 

492 

295 

436,  437 

35 

467 

443 

315 

179,  188 

353,  356 

435 

400 

29  i 

181 

381 

462 

49,  190 

77 

259 

321 

139 

219 

237 

220 

211 

261 

281 

315,  319 

190 

244 

194 

50 

411,  413,422 

94 

375 

417 

279 


INDEX   TO    CASES    CITED. 


XXXI 


Page 

Hollister  u.  Hollister  117 

HoUovvay  r.  Hampton  318 

V.  Lowe  263 

Holman  v.  Johnson      82,  252,  259,  260 

Holmes  V.  Goring  46 

V.  Holmes  529 

V.  Kerrison  370 

V.  Knights  303 

V.  Misroom  383 

v.  Remscn  83,118 

V.  Khodcs  462 

V.  Eobinson  241 

V.  Sinnickson  500,  501 

V.  William  422 

Iv.  Williams  423 

Holtham  v.  Kyland  185 

Homer  v.  Asiiford  256 

Hone  V.  Mutual  Safety  Ins.  Co.  52 

Hood  V.  Eiley  244 

Hooper  ?;.  Pierce  212 

V.  Stephens  353 

ex  parte,  340 

Hopcraft  v.  Hicl^man  205,  209 

Hopkins  v.  Grazebrook  505 

V.  Lee  505 

V.  Megguire  246 

Hopper  V.  Sisk  272 

Horn  V.  Horn  241 

Hornby  v.  Lacy  126 

Horner  v.  Graves  256 

V.  Fish  378 

V.  Flintoff  439 

Horrel  v.  McAlexander  207 

Horshurgh  v.  Orme  130 

Horsfall  v.  Fauntleroy  126 

Horsford  v.  Wright  500 

Horton  v.  Benson  208 

Hosford  V.  Nichols  83,  98 

Hothan  v.  East  India^Co-  6 

Hough  V.  Evans  273 

V.  May  135 

Houghton  V.  Page  82,  392 

Houlditch  r.  Donegal  120 

V.  Milne  306 

House  V.  Palmer                    '  20 

Houston  I'.  Pollard  204 

V.  Eobertson  243 

How  V.  Kemball  297 

Howard  v.  Burgen  319 

V.  Cadwalader  277 

V.  Chapman  128 

V.  Cooper  203 

V.  Edgell  201 

V.  Kentucky  &  Louisville  M. 

Ins.  Co.  535 

V.  Miner  161,  162 

V.  Sexton  201 

V.  Tucker  468 

Howe  V.  Bradley  147 

i\  Handley  478 

V.  Huntington  47,  174,  175 

V.  Palmer  821,  322,  325 


Page 

Howe  V.  Shcppard  244 

V.  Thompson  365 

Howell  V.  Burnett  375 

V.  Harding  242 

V.  Young  372 

Howlet  V.  Strickland  246 

Howson  V.  Hancock  139,  253 

Howton  V.  Frearson  46 

Hoyt  V.  Bridgewater  Co.  411 

V.  Byrnes  133,  151 

Hubbard  i'.  Chariestown  Branch  R. 

R.  Co.  381 

V.  Norton  503 

Huber  v.  Steiner  103 

Hubert  v.  Moreau  287 

V.  Turner  287,  292 

Huckle  V.  Money  449,  452 

Huddersfield  Canal  Co.  v.  Buckley  240 

Hudnall  v.  Scott  247 

Hudson  V.  Granger  249 

V.  Johnson  126 

V.  Tenney  382 

Hughes  V.  Wheeler  137,  393 

Huguenin  v.  Raylev  268 

Huggeford  r.  Ford"  478 

Hulmg  V.  Craig  185 

V.  Hugg  248 

Hull  r.  Blake  118 

V.  Caldwell  382 

V.  Clark  472 

r.  Hull  117 

Humble  V.  Mitchell  330 

Hume  V.  Peploe  148 

Iluniphrey  v.  Phinney  497 

Humphreys  v.  Gardner  201 

V.  Guillow  229 

V.  Jones  350 

Hunt  V.  Adams  226 

V.  Bell  261 

V.  Bridgham  361 

V.  Frost  66 

V.  Haskell  471 

V.  -Hecht  326 

V.  Hort  75 

V.  Moore  276 

V.  Nevers  381 

V.  Royal  Ex.  Ass.  Co.  174 

V.  Silk  192 

V.  The  Otis  Coiftpany  246 

Hunter  v.  Bennison  210 

i\  Prinsess  741 

Huntgate  v.  Mease  212 

Huntington  v.  American  Bank  149,  150 

Huntley  v.  Bacon  449 

V.  Sanderson  371 

Huntress  v.  Patten  399 

Hurd  V.  Fogg  242 

Huribcrt  u.  Pacific  Ins.  Co.  251 

Hurst  V.  Bumbidge  204 

Husband  V.  Davis  128 

.  Hussey  v.  Crickett  261 

Huston  V.  Moorhead  420 


XXXll 


INDEX   TO   CASES  CITED. 


Page 

Page 

Hutchins  i\  Adams 

442 

Jackson  v.  Henry 

397 

V.  Kiddle 

241 

i".  Hudson 

20 

I'.  Scott 

225 

V.  Ireland 

26 

Ilutcliisou  r.  Bowkcr, 

4,  8,  48 

I'.  Jackson 

116 

Hutchinson  v.  Ilosmcr 

411,  413 

V.  Jacob 

126 

V.  Morlcy 

275 

V.  Jacoby 

230 

V.  Rcid 

245,  486 

V.  Jones 

397 

V.  Sturgcs 

240 

V.  Lamphirc 

516, 539 

Hutton  I'.  Erye 

220 

V.  Lawrence 

20 

i\  Warren 

49, 

50,  52,  CO 

V.  Loomis 

496 

Hyde  v.  Jolinsou 

359 

V.  Lowe 

285 

V.  Stronj; 

383 

V.  Malin 

226 

V.  Trent  &  Mersey 

Nav 

Co.       50 

V.  Packard 

397 

Hylton  V.  Brown 

496 

V.  Parkhurst 

61 

Hysingcr  v.  Baltzells 

375 

V.  Pierce 
V.  Ransom 

340 
68 

I. 

V.  Reeves 
V.  Robinson 

18 
374 

Idc  V.  Gray 

269 

V.  Sill 

61 

V.  Stanton 

295,298 

V.  Stackhouse 

14,  219,  221 

Ilsley  V.  Jcwett 

136,  353 

V.  Stevens 

14 

Imlay  r.  EUefsen 

102 

V.  Turner 

500 

V.  Wickoff 

206 

V.  Wheat 

374 

Indianapolis  Ins.  Co.  v. 

Brown         393 

r.  Wilcox 

274 

Inhab.  of  Boston  v.  Brazier 

202 

V.  Wood 

495 

Ingalls  V.  Lee 

422,  425 

V.  Yabsley 

208 

V.  Lord 

471 

Jacobs  V.  Adams 

381 

Inglis  V.  Haigh 

366 

,  367,  369 

Jacob  V.  Kirk 

294 

Ingraham  i-.  Hall 

132 

James  v.  Attwood 

219 

Ingram  v.  Lawsoa 

460 

V.  Campbell 

444 

V.  Webb 

209 

V.  Catherwood 

82 

Inman  v.  Foster 

445 

V.  Cotton 

190 

Innel  v.  Newman 

129 

V.  David 

195 

Innes  v.  Stcplicnson 

628 

V.  Dowel 

231 

Ipswich  ]\Ianuf.  Co.  v.  Story 

222 

r.  Patten 

281 

Irby  V.  Wilson 

113 

V.  Raggett 

242 

Ireland's  Case 

434 

I'.  Stall 

535 

Irvine  v.  Kirkpatrick 

273,  279 

V.  Stall 

539 

V.  Stone 

298 

V.  Williams 

296,  297,  354 

Irving  V.  Thomas 

275 

Jamison  v.  Brady 

244 

V.  Veitch 

354,  370 

Jamieson's  Case 

219 

Isberg  V.  Bowdea 

240 

249,251 

Jaqucs  V.  "Withy 

241 

Ives's  Case 

28 

Jarmain  v.  Algar 

304 

Ivey  V.  McQueen 

449 

Jarvis  v.  Chappie 
V.  Peck 

248,  250 
257 

J. 

V.  Rodgers 
V.  AVilkins 

477 
297 

Jack  V.  McKcc 

506 

Jefferson  v.  Adams 

449,  450 

Jacks  V.  Bell         * 

450 

V.  Washington 

92 

V.  Moore 

248 

Co.  Bank  v.  Chapman        248 

V.  Nichols 

391 

Jcffcry  V.  Walton 

65,67 

Jackson  v.  Ambler 

203 

Jcllict  V.  Broade 

254 

V.  Baker 

439 

Jenkins  i\  Eldridgc 

310 

V.  Bartlett 

126 

V.  Hopkins 

503 

V.  Blodget 

16,  18,20 

V.  Reynolds 

296,  297 

V.  Bowcn 

397 

Jennings  v.  Camp 

37 

V.  Catlin 

293 

r.  Johnson 

479 

V.  Covert 

334 

V.  JNladdock 

449 

V.  Craig 

70 

Jewctt  V.  Warren 

322,  324 

V.  Duiisliagh 

15 

Johnson  r.  Arnold 

458 

V.  DcLong 

204 

V.  Boone 

144 

d.  Gibbs  V.  Osboni 

230 

V.  Clay 

149 

INDEX   TO   CASES   CITED. 


XXXUl 


Page 

Johnson  v.  Combs 

498 

V.  Cunningham 

127 

V.  Dodgsou 

287 

V.  Gilbert 

306 

V.  Hudson 

259 

V.  Holdsworth 

129 

V.  Johnson 

29,  32,  293 

V.  Lancaster 

149 

V.  Latham 

205 

V.  Marlborough 

229 

V.  Nyce 

501 

V.  Peck 

270 

V.  Somers 

294 

V.  Sumner 

472 

I'.  Smith 

324 

V.  Watson 

319 

V.  White 

239 

V.  Wilson 

210 

Johns  V.  Stevens 

215 

Johnston  v.  Bower 

232 

V.  Caulkins 

188 

i\  Glancy 

340 

Jones  V.  Barclay 

40 

V.  Bennett 

211 

ex  parte 

411 

V.  Boston  Mill  Corporation 

207,  215 

V.  Bullitt  131 

V.  Cooper  301 

V.  Dunn  32 

V.  Tales  51 

V.  Flint  313 

V.  Gilreath  245 

V.  Gwynn  443 

V.  Herbert  222 

V.  Hoar  150 

V.  Hook  100 

V.  Johnston  222 

V.  Judd  171 

V.  Kilgore  143 

V.  Lewis  373 

V.  Marsh  484 

V.  Moore  366 

V.  Newman  70 

V.  Petcrman  340 

V.  Eandall  261 

V.  Sawkins  198 

V.  Shorter  303 

V.  United  States  144 

V.  Ward  147 

V.  Yates  279 

Jordan  v.  Lewis  437 

V.  Meredith            •  58 

V.  Neilson  230 

V.  Trumbo  404 

Joseph  V.  Bigelow  66 

Joslyn  V.  Smith  361 

Joy  V.  Hopkins  382 

Jubber  v.  Jubber  70 

Judd  V.  Pulton  177 

Judson  v.  Wass  169 

Junkins  v.  Simpson  193 


Juzan  V.  Toulmin 


Page 
272 


K. 


Kane  i'.  Bloodgood 

V.  Hood 

V.  Old 
Karthans  v.  Ferrer 
Kay  V.  Curd 
Kaye  v.  Waghorne 
Kead  v.  Rann 
Kean  v.  McLaughlin 
Kcarslake  v.  Morgan 
Keate  v.  Temple 
Keating  v.  Price 
Keeble  v.  Hickeringall 
Keeler  v.  Neal 
Keenan  v.  Brown 
Keene  v.  Dilke 

V.  Thompson 


378 
6,  43.  45 
61 
203 
294 
200 
55 
446 
196 
301 
67 
458 
199 
44 
457 
134 
Keener  v.  Bank  of  United  States        59 
Keenhalte  v.  Becker  445 

Keightley  v.  Watson  3* 

Kellogg  v.  (jilbert  126 

V.  Hickok  429 

V.  Norris  127 

V.  Richards  131 

Kelly  V.  Dutch  Church  of  Schenec- 
tady 500,  507 
V.  Garrett  248 
V.  Low  502 
V.  Powlet  73 
Kelley  v.  Sanborn                                363 
V.  Smith                                    4G8 
V.  Webster                                316 
Kemble  v.  Farren                437,  439,  440 
Kemp  r.  Humphreys                            172 
Kendall  v.  Stone                  445,  449,  457 
Kendrick  i'.  Lomax                             196 
Kennaway  v.  Treleavan                      297 
Kennedy  v.  Gad                                  261 
V.  Strong                       470,  472 
V.  Whitwell  383,  470,  472,  482 
Kennett  v.  Milbank                            351 
Kennon  v.  Dickens                               430 
Kent  V.  Burgess                                  110 
V.  Elstob                                       215 
V.  Huskinson                       287,  325 
V.  Kent                                         317 
V.Phelps                              411,412 
Kenworthy  v.  Schofield                      292 
Kenyon  v.  Nichols                                 66 
Ketchum  v.  Barber                              427 
Kettle  V.  Harvey                              37,  42 
Kerns  v.  Schoonmaker                         372 
Kerr  v.  Chess-                                       237 
V.  IMoon                                           83 
Kcnren  v.  Parmelee                           362 
Key  V.  V.attier                                       263 
V.  Wilson                            ^          248 
Keys  V.  Harwood                                191 


XXXIV 


INDEX   TO   CASES   CITED. 


Page 
Kid  V.  Mitchell  473 

Kidder  v.  Hunt  340 

Kidney  v.  Stoddard  274 

Kilbiirn  ?•.  Kilburn  203,  208 

Kii,<,'ore  v.  P.ulkley  51 

Kilgour  r.  Miles  179 

Kilvin^fton  v.  Stevenson  243 

Kimball  i'.  Brown  353 

V.  Ciiuningham  277,  278 

i\  Proprietors  of  Boston 


AthenKum 

304 

Kimbcrly  v.  Ely 

535 

536 

Kincaid  i-.  Brunswick 

151 

Kingsley  r.  Balcomc 

303 

King  V.  Bowen 

203 

506 

V.  Chace 

236 

238 

V.  Diohl 

381 

V.  Dowdall 

179 

V.  Driiry 

417 

V.  Johnson 

422 

V.  Kerr 

500 

V.  Lane 

376 

V.  Masliiter 

11 

V.  Pyle 

500, 

502 

V.  Root 

449 

V.  Smith 

127 

Kingham  v.  Robins 

150 

Kingsbury  v.  Smith 

442 

Kingsley  v.  Wallis 

47 

190 

Ivingston  v.  Kincaid 

200 

V.  Kuibbs                , 

55 

V.  Preston 

40,  41 

Kington  v.  Kington 

133 

Kinnerley  v.  Hossack 

244 

247 

Kinney  v.  I'] n sign 

222 

V.  AVatts 

500, 

^507 

Kintzing  v.  McElrath 

'273 

Kirby  v.  Duke  of  Marlborough 

145 

Kirk  V.  Glover 

120 

Kirkham  v.  Marter 

309 

Kirkpatrick  v.  Houston 

400 

V.  Smith 

67 

Kirton  v.  Braithwaitc 

151 

Kittrege  v.  Brown 

349 

Kleinc  v.  Catara                  203 

215, 

216 

Klock  V.  Robinson 

3S0 

Knapp  V.  Harden 

60 

V.  Malthy 

440 

Kneeland  v.  Ensley 

111 

ICnight  V.  Barber 

330 

V.  Burton 

209 

211 

V.  Clcmants 

229 

V.  Cole 

14 

r.  Crockford 

288 

I'.  Dunlop 

171 

V.  The  New  England  Wors 

ted  Co. 

44,45 

Knights  V.  Putnam 

395 

Knoop  V.  The  Piijua  Bank 

511, 

512. 

514, 

527 

Knowlcs.i;.  Michel 

314 

Knox  V.  Simouds 

217 

Knox  V.  The  Ninetta  58 

I'.  Waldoborough  239 

Kohn  V.  Schooner  Renaisanec  260 

Koons  V.  Miller  380 

Kortright  v.  Buffalo  Com.  Bank       473 
Kratzer  i'.  Lyon  201 

Krans  v.  Arnold  154 

Krider  v.  Lafferty  69 

Krom  V.  Schoonmakcr  444 

Kunckle  r.  Kunckle  206,  207 

346,  365 


Kyle  V.  Wells 


La  Amistad  de  Rues 
Lacaussadc  v.  White 
Lackington  v.  Atherton 
Lacon  v.  Briggs 
r.  Higgins 
Lacy  V.  Kynaston 
Laflin  V.  Willard 
Lafonde  v.  Ruddock 
Laforge  v.  Jayne 
Laidler  v.  Burlinson 
Laidlaw  r.  Organ 
Laing  v.  Chatham 

V.  Lee 
Laird  v.  Pim 
La  Jeune  Eugenie 
Lamar  v.  Martin 
Lamb  v.  Crafts 

V.  Lathrop 
V.  Lindsey 
Lambert  v.  Bessey 
Lamego  v.  Gould 
Lamerson  v.  Marvin 
Lampen  i\  Kcdgewin 
Lampon  v.  Corke 
Landon  v.  Litchfield 
Landsdale  v.  Brashear 
Lane  v.  Chandler 

V.  Cook 

V.  Harrison 

r.  Pcarce 

V.  Steward 
Lang  V.  Webber 
Langdon  v.  Paul 
Langfort  v.  Tiler 
Langridgc  v.  Levy 
Langton  v.  Hughes 
Lansing  v.  Lansing 
Lansdale  v.  Brashear 
Lapliam  i'.  Whipple 
Lathrop  v.  Amherst  Bank 

V.  Atwood 
Laughter's  Case 
Laugliton  r.  Taylor 
Laval  V.  Myers 
I  jaw  V.  Jackson 
Lawlcy  r.  Hooper 
Lawrence  v.  Cowles 


459 
253 
324 
342 
107 
220 
493 
376 
346 
31 
273 
247 
297 

485,  506 
82 
496 
336 
165 
403 
444 
419 
278 
239 
14 
526 
368 
250 
464 
239 
242 

422,  425 
242 
226 
484 

277,  458 

253,  259 
262 

353.  309 
316 
263 
462 
22 
232 
262 
151 

385,417 
394 


INDEX   TO   CASES   CITED. 


XXXV 


Page 

Page 

Lawrence  v.  Dole 

168 

169 

Lexington  &  Ohio  E.  R.  Co.  v 

Ap- 

V.  Hand 

277 

plegate 

522 

V.  McCalmont 

14 

V.  Clarke 

298 

299 

V.  McGregor 

53 

Liddel  v.  Sims 

172 

V.  Taylor 

294 

Litft  V.  Culver 

449 

V.  Wardwell 

458 

460 

Liford's  Case 

46 

r.  Warrall 

342 

Lightfoot  V.  Tenant 

257 

260 

Lawrcnson  v.  Butler 

290 

Lightbody  v.  Ontario  Bank 

134 

Law's  Ex'rs  v.  Sutherland 

423 

Lillard  v.  Whitaker 

472 

Laythoarp  v.  Bryant 

290 

338 

Lillie  V.  Hoyt 

371 

Layton  v.  Butler 

496 

Lincoln  v.  S.  &  S.  R.  R.  Co. 

442 

457 

V.  Pearce 

169 

V.  Battelle 

102 

Lea  V.  Barber 

298 

299 

V.  Hapgood 

91 

Leaper  v.  Tatton 

342 

344 

V.  Wilder 

18 

Lear  v.  Yarnel 

390 

V.  Whittcnton  Mills 

205 

Learned  v.  Bellows 

221 

&  Kennebeck  Bank  v. 

Page   51 

Leatherdale  v.  Swcepstonc 

154 

,155 

Lindenan  v.  Desborough 

268 

274 

Leavitt  v.  De  Laung 

414 

Lindgren  v.  Lindgren 

63 

Lebalister  v.  Nash 

158 

Lindon  v.  Hooper 

471 

Le  Breton  v.  Miles 

95 

111 

Lindsay  v.  Amsley 

435 

r.  Nouchct 

111 

V.  Lynch 

340 

Lechmere  v.  Fletcher 

349 

Lindsey  v.  Gorden 

172 

V.  Hawkins 

248 

Line  v.  Stephenson 

28 

Lee  V.  Elkins 

206 

210 

Lingley  v.  Cutler 

441 

V.  Pain 

82 

Lingwood  v.  Eadc 

209 

V.  Perry 

342 

Link  V.  Clemmens 

179 

V.  Wood 

220 

Linscott  V.  Mclntirc 

315 

V.  Woolsey 

455 

Linsell  v.  Bousor 

356 

Leffingwell  v.  Elliott          4^^ 

2,  499 

502 

Linsey  v.  Ashton 

209 

Leggett  V.  Steele 

497 

Linslcy  v.  Bushnell 

442 

449 

Legh  V.  Hewitt 

50 

Liotard  v.  Graves 

381 

V.  Legh 

129 

Littell  V.  Hord 

395 

Leland  v.  Stone 

452 

Little  V.  Blunt                     365, 

371 

375 

Le  Louis 

80 

Littlefield  v.  Winslow 

11 

Leigh  V.  Hind 

256 

Lively,  The  Schooner, 

459 

V.  Paterson 

188 

Livermore  v.  Herschell 

236 

V.  Patterson 

481 

Livingston  v.  Bird 

406 

Leighton  v.  Wales 

256 

V.  Indianopolis  Ins 

Co. 

400 

Leonard  v.  Bates 

43,  45 

V.  Wooton 

139 

V.  Pitney 

378 

Llewellyn  v.  Earl  of  Jersey 

62 

V.  Vredcnburgh 

297 

Lloyd  V.  Brewster 

270 

278 

Le  Page  v.  McCrea 

131 

V.  Goodwii* 

476 

479 

Leeds  and  Liverpool  Can. 

Co.  V. 

V.  Kcach 

395, 

422 

Hustler 

19 

V.  Leiseuring 

262 

Leroux  v.  Brown 

337 

V.  Maund       5,  342,  343, 

348 

349 

Le  Roy  i\  Crowninshield 

102 

103 

V.  Scott               385,  394, 

406 

417 

Lester  v.  Garland 

176, 

177 

V.  Walkey 

150 

Lethbridge  v.  Mytton 

462, 

503 

V.  Williams                400, 

401 

410 

Levezey  v.  Gorgas 

209 

Load  ?7.  Green 

269 

Lewis  V.  Burgess 

211 

Lobdell  V.  Hopkins 

160 

V.  Campbell 

507 

Lock  V.  Miller 

247 

V.  Culbertson 

244 

Lockwood  V.  Barnes 

316, 

319 

V.  Gemage 

126 

Lockridge  v.  Foster 

272 

V.  Houston 

378 

Lodge  V.  Piielps 

100 

V.  Jones 

131, 

270 

Loficld's  Case 

20 

V.  Littlefield 

261 

Logan  V.  Austin 

199 

V.  Lyster 

196 

V.  Mason 

141, 

144 

V.  ]\Iarshall 

53,  55 

Logs  V.  Mahogany 

231 

V.  Payn 

226 

Loir  V.  Bristow 

247 

V.  Peako 

442 

488 

Loker  v.  Damon 

454 

V.  Weldon 

44 

Lolley's  Case 

114 

XXXVl 


INDEX   TO   CASES   CITED. 


Londonderry  r.  Chester 
Long  r.  Allen 

V.  Storic 

&  Wharton's  Case 
Loomis  V.  Bedel 
V.  Green 
t'.  Newiiall 
Loosemorc  i\  Iladford 
Lord  v.  Belknap 

I'.  Goddard 
Lord  Darcy  i\  Askwith 

Dorner  v.  KnighJ; 


Page 

530 

50 

394 

418 

499,  500 

236 

298 

462 

42 

272 

46 

13 

Ossulston  V.  Loril  Yarmouth   430 

Loring  v.  Brackett  222 

V.  Cooke  156 

V.  Gurney  57 

London  v.  Tiffany  248 

Longridgc  r.  Dorville  199 

Love  V.  Ilackett  349 

V.  Pares  19 

Lovcl  V.  Whitridge  244 

Lovelock  V.  Franklyn  179,  188 

Lowber  v.  Le  Eoy  13 

Lowe  V.  Peers  441 

V.  Waller  386,  394 

Lowell  V.  Johnson  397 

Lower  I'.  Winters  314,316 

Lowers  v.  Mazzaredo  395 

Loweth  V.  Fothergill  342 

Lowman's  Appeal  244 

Lowrell  v.  Marrell  134 

Lowry  v.  Francis  510 

V.  Mehaff'y  41 

Lubbock  V.  Potts  253 

Lucas  V.  Chamberlain  303 

V.  Godwin  172 

Ludlow  V.  Gill  269 

V.  Van  Kcnssclaer  82,  260 

Luej  V.  Bundy  193 

Luke  V.  Lydc  28 

Lush  V.  Druse  381 

Lutz  r.  Linthicum  206,217 

Luxmore  v.  Eobson  507 

Lyle  V.  Barker  477 

V.  Murray  371 

V.  Rodgers  202,  205 

Lyman  ?;.  Clark  14,221 

Lynch  v.  Brag  245 

V.  Clemence  201,  202 

V.  Nuidin  458 

Lyon  I'.  Commercial  Ins.  Co.  274 

r.  King  318 

V.  Knott  1 1 1 

V.  Lamb  296 

V.  State  Bank  407 

Lysaght  v.  Walker  297 

M. 

M'Allistcr  V.  Raeb  380 

M'Cabc  V.  Morchead  479,  487 


Page 

M'Carty  v.  Colvin  138 

V.  Decaix  114 

M'Clarin  v.  Ncsbit  134 

M'Comb  V.  Wright  -      292 

M'Cracken  v.  West  277 

M'Crea  v.  Purmort  290 

M'Culloch  V.  M'Culloch  110 

MDaniel  v.  Hughes  118 

M'Donald  v.  Scaife  479 

M'Elmoyle  V.  Cohen  102 

M'Elwec  V.  Collins  425 

M'Guire  v.  Parker's  Exrs.  391 

M'Hard  v.  Whetcroft  154 

M'Kcsson  V.  M'Dowell  411,  413 

M'Leles  u.  Hale  319 

M' Queen  v.  Burns  391 

Maberley  r.  Sheppard  321,  329 

Macarthur  t'.  Campbell  212 
Macintosh  v.  The  M.  C.  Railway  Co.  45 

Maclean  v.  Dunn  292 

Machir  r.  Moore  262 

jMackay's  Case  202 

Macon  v.  Crump  201,  206 

Macomber  v.  Durham  390 

Macrory  v.  Scott  285 

Macy  V.  Whaling  Ins.  Co.  54 

Maddeford  v.  Austwick  275 

Maddock  v.  Hammett  400 
Maguire  v.  Maguire             113,  116,  529 

Maghee  v.  O'Neil  357 

Mahony  v.  Young  497 

Maburin  v.  Bickford  124 

V.  Pearson                 •  245 
Maillard  v.  The  Duke  of  Argyle       355 

Maine  Bank  r.  Butts  406,411 

Makepeace  v.  Coates  240,  241 

V.  Harvard  College  15 

Making  v.  Welstrop  212 

Maiden  r.  Tyson  504 

Mall  V.  Roberts  86 

Malins  v.  Freeman  190 

Malin  v.  Malin  271 

Mallan  v.  May  256 

Mallett  V.  Foxcroft  237 

Mallory  v.  Bird  400 

Manderston  v.  Robertson  360,  361 

Mandcville  v.  Wilson  369 

]\lanelly  v.  McGec  130 

IManhattan  Co.  v.  Osgood  411 

Manning  r.  Cox  129 

Manor  v.  Pyne  379 

Manrow  v.  Durham  297 

Manser  i'.  Heaver  209 

Mansfield  v.  Mclntyrc  117 

]\Iany  v.  Beekman  Iron  Co.  12 

IMarchant  v.  Dodgin  399 

Marchlicsscan  ??.  Chaflfeo  481 

Mardall  v.  Thclhisson  243 

iMar<)uand  r.  Hi|ipcr  297 

Marietta  r.  Fleariiig  511 

Mark  v.  Jones  527 


INDEX    TO    CASES   CITED. 


xxxvu 


Markle  v.  Hatfield 
Markluim  r.  Gonaston 
Marks  v.  Morris 
Marryatts  v.  White 
Marseilles  v.  Kenton 


Page 
134 
223 
404 
145 
369 


Marsh  v.  Martindale   385,  397,  406,  409 

u.  Packer  212 

Marshall  v.  Betncr  442 

V.  Broadhurst  45 

V.  Linn  296 

Marsteller  v.  M'Clean  374 

Marston  v.  Hobbs  498 

Martin  v.  Atkinson  496,  501,  503 

V.  Bracknell  145 

V.  Broad  349 

V.  Surge  206,  208 

V.  Delaware  Ins.  Co.  53,  54 

V.  Hawks  242 

V.  Heathcotc  369 

V.  Lonc^  499 

V.  Mitchell  290 

V.  Nicolls  120 

V.  Porter  475 

V.  Roberts  278 

?;.  Thornton  211 

V.  Williams  202 

Martindale  v.  PoUct  227 

Marvin  v.  Bates  378 

Maryat  v.  Brodcrick  139 

Marzetti  v.  Williams  493 

Mason  v.  Chambers  40,  42 

I'.  Haile  532 

ff.  Knowlson  241 

V.  Philips  490 

V.  Pritchard  21 

V.  Robinson  70 

V.  WHiite  70 

Masson  v.  Bovet  192,  278 

Master  v.  Miller  224,  226 

Masterman  v.  Cowrie  387,  411 

Masters  v.  Masters  68 

V.  Miller  262 

Masterton  v.  Mayor  of  Brooklyn      460, 

461,463,  467 

Mather  v.  Bush  535 

Mathews  v.  Davis  496 

V.  Lewis  419 

Matson  v.  Wharam  301 

Matthews  v.  Coalter  230 

Mattison  v.  Wescott  159 

Mattock  V.  Kinglake  41 

Matton  V.  Craig  491 

V.  Pearcc  478 

Maule  V.  Murray  118,  119 

Maunsell  I'.  White  311 

Mavor  r.  Pyne  30,171,319 

Mawe  V.  Samuel  212 

May  V.  Babcock  67 

V.  Breed  536 

V.  Campbell  422,  425 

Maybin  v.  Coulon  207 

VOL.  II.  d 


Page 

Mayficld  v.  Wadsley  30,  299,  314 

Maynard  v.  Hunt  153 

V.  Rhodes  268 

Mayor  of  Berwick  v.  Oswald  200 

Mayor,  &c.  of  Alexandria  v.  Patten  141 

Mayne  v.  Griswold  378 

Mazozon  i\  Foot  375 

Maze  V.  Miller  197 

McAllister  I'.  Gallaher  139 

V.  Hoffman  139,  262 

V.  Reab  246 

McArthur  v.  Seaforth  473,  480 

McBride  v.  Gray  349 

V.  Hagan  202 

V.  McLaughlin  444,  449 

McClure  v.  Williams  398 

McConnell  v.  Dunlap  505 

V.  Hampton  452 

McConnel  v.  Hall  158,  165 

McCormick  v.  Sullivant  83 

McCracken  v.  Havwood  533,  539 

McCulloch  I'.  Judd  369 

McCuUough  V.  Henderson  356 

V.  Myers  202 

V.  Wainwright  61 

McCullum  V.  Gourlay  139 

McDaniels  v.  Barnum  404 

V.  Lapham  199 

McDaniell  v.  Bell  202 

McDaniel  v.  King  92 

McDermott  v.  U.  S.  Ins.  Co.  208 

McDonald  v.  Bacon  205 

V.  Rainor  239 

V.  Trafton  268 

McDonnell  v.  Branch  Bank  371 

McDonold  v.  Hodge  490 

McDowel  V.  Chambers  290 

McDowell  V.  The  Blackstonc  Canal 

Co.  143 

V.  Tyson  244 

McGilU'.  Ware  395,411 

McGillivray  v.  Simson  248 

McGoon  V.  Ankeny  264 
McGregor  v.  Ins.  Co.  of  Penn.      50,  59 

Mcllvainc  v.  Wilkins  381 

Mclntyre  v.  Williamson  14 

McJilton  V.  Love  232 

McKeen  v.  Allen  204 

V.  Gammon  507 

V.  Oliphant  207 

McKenzie  v.  Hancock  487 

V.  Kevins  144 

McKeon  v.  Caherty  261 

McKinney  y.  Page  218 

McKinsey  i'.  Anderson  231 

McKinstry  v.  Solomons  203 

McKnight  v.  Dunlop  30,  36 

McLaughlin  v.  Hill  464 

McLeod  V.  Burroughs  518 

McLurc  V.  Rush  42 

McMickcii  V.  Beauchamp  229 


xxxviii 

INDEX   TO    CASES 

CITED. 

Page 

Page 

McMillan  v.  McNeil 

535,  536 

MiUei 

V.  Goddavd 

38 

McMurry  v.  The  State 

IGO 

V.  IIowcll 

272 

McNamara  v.  King 

449 

V.  Hull 

398 

McNaughten  v.  Casally 

485 

V.  Kcimcdy 

218 

McNaughter  v.  Cassaly 

484 

V.  Mariner's  Church 

454 

McNcar  o.  Bailey 

203 

V.  McClain 

165 

McNeil  V.  Reed 

460 

V.  Miller                            209,  371 

McNitt  V.  Clark 

169 

V.  Pelletier 

291 

McWhorton  v.  McMahan                  294 

V.  Thompson 

21 

Mead  v.  Degolyer 

36,  171 

V.  Travcrs                        63 

75,77 

V.  AVheeler 

437 

MilliK 

en  V.  Brown 

130 

Meader  v.  Scott 

244 

Milne 

V.  Morcton 

83 

Meadows  v.  Meadows 

292,  293 

Mills 

V.  Bank,  of  United  States 

51,57 

Meason  i?.  Philips 

490 

V.  Bell 

500 

Mechanics'  Bank  v.  Edwards  399 
&  Traders'  Bank  v.  Debolt 
514,  527 

Mechelen  v.  Wallace  298 

Medbury  v.  Hopkins  82,  103 

Medlin  v.  Piatt  County  226 
Medway  v.  Needham           104,  105,  109 

Meech  v.  Smith  380 

Megginson  v.  Harper  366 

Melan  v.  Fitzjames  101 

Melledge  v.  Boston  Iron  Co.  136 

Mellen  v.  Boarman  243 

Mellor  V.  Spateraan  492, 493 

Melville  v.  Hayden  21 
Melvin  v.  Proprietors,  &c.  on  Mer, 

liiver  18 

Mercein  v.  Smith  243 

Mercer  r.  Jones  470,471 

V.  Selden  374 

Merchants'  Bank  v.  Spicer  135 

Meredith  v.  Gilpin  237 

V.  Hinsdale  100 

V.  Meigh  328 

Mercs  v-  Ansell  61 

Meriwether  v.  Bird  239,  240 

Merril  v.  Frame  28 

Merrill  v.  Gore  13 

V.  Merrill  441 

Merrills  v.  Law  390,  393 

Merrimack  County  Bank  v.  Brown  146 

Merritt  I'.  Benson  413 

V.  Clason  287,  290 

Metcalf  V.  Ives  203 

V.  Pilcher  422,  425 

Mettler  v.  Moore  492 

Meux  V.  Humphries  259 

Meyer  v.  Isaac  18,  19,  21 

Michael  v.  Mills  502 

Michelen  v.  Wallace  314 

Michigan  State  Bank  v.  Hastings     514 

Middleton  v.  Hill  242 

V.  Janverin  104 

r.  Weeks  211 

Milburn  v.  Beach  449 

Milbourn  v.  Ewart  222 

Mill  Dam  P'oundery  v.  Hovey  44,  45 

Miller  v.  Covent  132 


V.  Catlin  14,  18 

V.  Durgee  120 

r.  Fowkes  141,353,356 

V.  Hunt  324 

V.  Williams  511 

V.  Wright  26 

Miner  v.  Bradley  32 

Miners'  Bank  v.  United  States   514,  518 

^linet,  ex  parte  295 

Mingus  V.  Pritchet  161 

Minns  v.  Morse  337 

Minor  v.  Michie  160 

V.  Walter  247 

Mitchell  V.  Billingslcy  449 

V.  Cragg  199 

V.  Dall  142,  145 

V.  Darthez  28 

V.  Hazen  499 

V.  Kingman  .          66 

V.  McLemore  371 

V.  Merrill  165 

V.  Newhall  51 

V.  Oldtield  242 

V.  Reynolds  258 

V.  Scllman  346 

Mixer  i'.  Howarth  335,  336 

]\Ioak  V.  Johnson  507 

Mocns  V.  lleyworth  268 

Moll'at  V.  Parsons  127,  151 

Mohawk  Bank  v.  Burrows  242 

Bridge  Co.  v.  Utica  &  Sch. 

R.  R.  Co.  19,  518 

Mollett  V.  Wackerbarth  225,  226 

Molyn's  Case  16,  18 

Moncurc  v.  Derniott  422 

Montacute  v.  Maxwell  294 

j\Iondel  V.  Steel  246 

Monroe  v.  Douglas  123 

]\Iontagiie  v.  Smith  212 

Moiitrion  v.  JcilVics  468 

JMoody  V.  Baker  458 

V.  Mahurin  134,157 

Moon  V.  Durden  261 

V.  Guardians  of  Whitney 

Union  51 

^loore  V.  Adam  457 

V.  Albany  &  S.  R.  Co.      443, 444 


INDEX   TO   CASES   CITED. 


XXXIX 


Page 

Page 

Moore  v.  Clementson 

126 

Munro  v.  Alairc 

203.  207 

y.  Pox 

318 

V.  Saunders 

107 

V.  Ilciidrick 

376 

Munroe  v.  Perkins 

67 

V.  Hylton 

394 

V.  Pritchett 

27 

2,  282 

V.  Hyman 

349 

Murray  v.  Baker 

378 

V.  Magratli 

14 

V.  Gouvernenr 

496 

V.  Meagher 

453 

V.  Harding 

417 

V.  Platte  Co. 

439 

V.  Mann 

271 

V.  Ross 

315 

V.  Mechanics' 

Bank 

349 

V.  Turbevillc 

270 

Murry  v.  Smith 

47 

V.  Voughton 

381 

,439 

Muse  V.  Donelson 

363 

Moore's  Ex'rsu.  Vance 

38G 

,  426 

Musgrove  v.  Gibbs 

422 

Morancy  v.  Quarles 

221 

Mussen  v.  Price 

486 

Morcure  v.  Dcrraott 

397 

Mynn  v.  Joliffe 

127 

Morgan  v.  Bliss 

269 

V.  Mather 

217 

,  429 

V.  McGhee 

107 

K 

V.  Pebrer 

261 

V.  Richards 

261 

Naish,  In  re 

417 

V.  Wolton 

346 

,  365 

Naglee  v.  IngersoU 

244 

r.  Schermerhorn 

386 

,  404 

Narragansett,  The 

459 

More  V.  Howland 

427 

Nash  V.  Tuppcr 

IOC 

,  102 

Morley  v.  Boothby 

296 

,  297 

National  Fire  Ins.  Co. 

V.  Loomis 

291 

V.  Inglis 

246 

Neal  V.  Sheaffield 

200 

Morphett  v.  Jones 

340 

Neale  v.  Ledger 

219 

Morrell  v.  Fisher 

64 

NedrifFe  v.  Hogan 

242 

V.  Frith         5,  62 

346,  348 

,  349 

Negus,  ex  parte 

462 

Morris  v.  Abat 

500 

Neil  V.  Cheves 

67 

V.  Jones 

417 

Neilson  v.  Harford 

4 

V.  Langdale 

457 

V.  Morgan 

449 

V.  Phelps 

501 

502 

Nellis  V.  Clark 

279 

V.  Sliter 

43 

Nelson  v.  Boynton 

305 

,  308 

V.  Stacey 

2»95 

V.  Carrington 

502 

V.  Vanderen 

230 

V.  Cartwell 

381 

Morrison  v.  Galloway 

44 

V.  Hopkins 

62 

V.  IMoreland 

248 

V.  Mathews 

502 

Morrisset  v.  King 

420 

Nettleton  v.  Billings 

25 

Morrow  v.  Starke 

127 

V.  Sikes 

312 

Morse  v.  Bellows 

127 

Neville  V.  Wilkinson 

281 

V.  Crawford 

444 

Nevison  v.  Whitley 

405 

V.  Wilson 

420 

Newall  V.  Hussey 

136 

Morton  v.  Babcock 

500 

Newbury  v.  Armstrong 

297 

V.  Dean 

292 

294 

V.  Brunswick 

110 

V.  Tibbett 

325 

327 

Newcomb  v.  Ramer 

314 

V.  Webb 

234 

Newell  V.  Newton 

232 

Mortlock  V.  Buller 

294 

V.  Turner 

277 

Mosby  V.  Wall 

239 

N.  E.  Bank  ik  Lewis 

239 

Moss  V.  Adams 

143 

Mutual  Ins.  Co.  i 

.  Butler 

179 

Motto  V.  Dorrell 

390 

Newhall  v.  Wright 

15 

Mott  V.  Mott 

441 

New  Jersey  v.  Wilson 

526, 

530 

Mowry  v.  Bishop        409, 

428,  429, 

430 

Newman  v.  Labeaume 

212 

Moulton  V.  Trask 

35 

V.  Meek 

143 

Mountacute  v.  Maxwell 

310 

Newmarch  v.  Clay 

142 

Mountford  v.  Willis 

382 

Newton  v.  Foster 

247 

Mountstephen  v.  Brooke 

129, 

344 

V.  Galbraith 

158 

165 

Moxon  V.  Atkins 

55 

?'.  Lucas 

61 

,  65 

Munn  V.  Baker 

21 

New  York  Firemen  Ins 

.  Co.  r.  Ely 

394, 

Munn  V.  Commission  Co. 

395, 

422 

407, 

409 

Muirhead  v.  Kirkpatrick 

252 

V.  Mien 

539 

Mudd  V.  Reeves 

134 

New  York  Bowery  Ins. 

Co.  V.  N.  Y 

Munford  v.  McPherson 

61 

Ins.  Co. 

274 

V.  Whitney 

315 

&  H.  R.  Co. 

V.  Story 

460 

xl 


INDEX  TO   CASES  CITED. 


Page 

Page 

Niagara  Bank  v.  Roscvclt 

143 

Ogden  V.  Saunders   531,  535, 

536,537, 

Nicholas  v.  Cliapman 

212 

538 

Nicholls  V.  Strctton 

256 

Ogilvie  V.  Foljambc 

288 

V.  "Wilson 

373 

Okell  V.  Smith 

190 

Nichols  I'.  Cosset 

39L 

Okllicld  V.  Wilmer 

201,  206 

i:  Fearson 

393 

,395 

Oldham  v.  Turner 

422 

V.  Freeman 

505 

Oliver  v.  Gray 

365 

V.  Johnson              226, 

294 

298 

Olmstcad  v.  Beale 

37,38 

V.  Lee 

393 

V.  Miller 

453 

V.  Luce 

46 

Onion  v.  Robinson 

207 

V.  Patten 

279 

Ontario  Bank  v.  Schermcrhom          413 

V.  Eensselaer  Mut.  Ins 

Co. 

206 

Ormerod  v.  Tate 

213 

V.  Whiting 

165 

Ormrod  v.  Huth 

271 

Nicholson  v.  Paget 

21 

Orr  V.  Churchill 

436 

Nightingall  v.  Smith 

64 

V.  Williams 

163 

Nind  V.  Marshall 

14 

Orsulton  v.  Yarmouth 

428 

Nixon  V.  BuUocic 

165 

Osborn  v.  Ethcridgc 

245 

Noble  V.  Howard 

241 

V.  Wise 

70 

V.  Kennoway 

53,  55 

Osborne  v.  Humphrey 

526 

V.  Peebles 

203 

Osgood  V.  Hutchins 

25 

Nobles  V.  Bates 

256 

Ostell  V.  Lepage 

232 

Noe  V.  Hodges 

134 

Oswego  Falls  Bridge  v.  Fish 

518 

Noke's  Case 

28 

Otis  V.  Lindsay 

429 

Norman  v.  Cole 

260 

V.  Raymond 

273 

V.  Molett 

285 

Ougier  v.  Jennings 

50,  58 

V.  Morrell 

68 

Outram  v.  Morewood 

235,  237 

V.  Phillips 

325 

,329 

Oiitwater  v.  Dodge 

325 

Norris  v.  Spencer 

302 

Owen  V.  Thomas 

62,  298 

V.  Trustees  of  Abingdon  Acad- 
emy 514 
North  V.  Forrest                                   331 
North  River  Meadow  Co.  v.  Shrews- 


bury Church 
Nortlirup  r.  Northrup 
Norton  v.  Babcock 
V.  Cook 
V.  EUam 
V.  Preston 
V.  Young 
Norwich  v.  Norwich 
N  curse  v.  Barns 
v.  Prime 
Novell i  V.  Rossi 
Nowell  V.  Roake 
Noj'es  V.  Butler 
V.  Ward 
Nunez  v.  Jlodigliani 
Nurcst  V.  Harvey 

O. 

Oates  r.  Bromell 
Oatman  v.  Walker 
O'Brien  v.  Gilclirist 
.Ohcrmycr  v.  Nichols 
O'Connor  v.  Forster 
Odiorne  t\  Sargent 
Oincyj;.  Clay 
Ogden  t'.  Astor 
V.  Ogden 


230 
45 
502 
535,  536 
371 
340 
192 
201 
505 
411 
118 
495 
120 
442 
242 
449 


212 

507 

67 

44 

468,  469 

15 

127 

369,  370 

310,311 


V.  WoUey  342 

Owings  V.  Speed  509 

Oxendale  v.  Wetherell  35, 163,  170, 171 
Oyster  v.  Longnecker  402 


P. 


Packard  v.  Hill 

8 

V.  Richardson 

296 

Packer  v.  Willson 

297 

Page  V.  Foster 

203 

Paige  V.  Ott 

36 

,171 

T>     1  „,  „., 

208 

212 
412 

V.  B.aker 

V.  Blackburn 

57 

V.  Green 

244 

V.  Stebbins 

256 

Palmerton  v.  Huxford 

199 

Pancoast  v.  Addison 

378 

Paradine  v.  Jane 

185 

Paramour  v.  Yardley 

26 

Parham  v.  Randolph 

272 

Parish  v.  Stone 

66 

Park  V.  Bates 

500 

Parker  v.  Branckcr 

467 

V.  Brown 

499 

V.  Colcord 

234 

V.  Donaldson 

249 

V.  Eggleston 

205 

V.  Gossagc 

13 

V.  Great  Western  Rai 

way 

Co. 

19 

V.  Kendall 

248 

INDEX   TO    CASES    CITED. 


xli 


Page 

Page 

Parker  v.  Nichols 

16 

Pellcw  V.  Wonford 

17f 

,  177 

V.  Parmele 

45 

,  169 

Peltier  v.  Collins 

294 

V.  Ramsbottom       385 

,  388 

,  393 

Pcmberton  v.  Vaughan 

256 

V.  Rcdtield 

526 

Pence  v.  Duvall 

500 

V.  Rochester 

253 

Pendergrast  v.  Foley 

374 

V.  Simonds 

478 

Penley  v.  Watts 

489 

V.  Stainlaml 

314 

Penniman  v.  Hartshorn 

288 

,  290 

Parks  V.  Boston 

470 

,472 

V.  Patchin 

202 

Parkhurst  v.  Smith 

6 

Pennock  v.  Freeman 

378 

V.  Sumner 

238 

People  V.  Bartlett 

188 

r.  Van  Cortlandt 

294 

,  298 

V.  Gutherie 

382 

Parmitcr  v.  Coiiphind 

5 

V.  Judges 

242 

Parr  v.  Eliason 

393 

,  395 

V.  Manhattan  Co. 

514 

Parsonage  Fund  v.  Osgood 

356 

V.  Morris 

511 

Parsons  v.  Aldrich 

203 

V.  New  York  Common  Pleas  242 

V.  Parsons 

62 

Peters  v.  Anderson 

141 

Paschall  v.  Passmore 

23 

V.  Ballister 

323 

Pastorius  r.  Fisher 

493 

V.  Brown 

365 

Patrick,  ex  parte, 

412 

V.  Gooch 

193 

V.  Greenway 

493 

V.  Newkirk 

217 

218 

V.  McConnel 

505 

V.  McKeon 

504 

Patterson  v.  Brown 

368 

369 

V.  The  Wan-en  Ins.  Co 

456 

(•.  Stewart 

503 

V.  Wcstborough 

318 

,319 

Pattison  v.  Hall 

' 

143 

Peytoe's  Case 

166 

193 

Paul  V.  Slason 

493 

Phalen  v.  Virginia 

538 

Pawling  V.  Bird 

116 

Phalen's  Case 

538 

V.  Pawling 

430 

Philadelphia  &  Wilmington  R 

R. 

V.  Wilson 

113 

Co.  V.  Maryland 

526 

527 

Payler  v.  Homersliam 

14 

221 

Philbrick  v.  Preble 

202 

Payne  v.  Baldwin 

515 

Philbrook  v.  Belknap 

172 

337 

V.  Bettisworth 

44 

Phelps  V.  Pierson 

404 

V.  Rogers 

129 

V.  Riley 

492 

V.  Trezevant 

395 

Philips  V.  Bury 

511 

Paynter  v.  Walker 

244 

V.  Hunter 

118 

119 

Peacock  i'.  Dickerson 

156 

V.  Joel 

262 

V.  JefFery 

241 

V.  Knightley 

201 

,209 

Peak  V.  Bull 

234 

V.  Morrison 

173 

Pearce  v.  Patton 

539 

Phillimore  v.  Barry 

285 

Pearl  v.  Wells 

220 

Phillips  V.  Berick 

132 

Pearsall  v.  Dwight 

100 

103 

V.  Bistolll 

321 

325 

Pearson  v.  Archbold 

206, 

208 

V.  Broadley 

373 

V.  Davis 

500 

V.  Clagett 

129 

V.  M'Gowran 

401 

V.  Cockayne 

393 

Pease  v.  Hirst 

360 

V.  Higgins 

208 

Peate  v.  Dicken 

297 

V.  Lawrence 

449 

Peck  V.  Briggs 

261 

V.  Smith 

500 

V.  Davis 

197 

V.  Thon?pson 

340 

V.  Halsey 

70 

V.  Williams 

381 

V.  Hozier 

100 

102 

Phillpots  V.  Evans 

188 

V.  Hubbard 

161 

Phillpott  V.  Jones 

141 

V.  Wakely 

204 

Philpotts  V.  Evans 

484 

Peckham  v.  Faria 

301 

Phipps  V.  Anglesea 

98 

Pecks  V.  Mayo 

96 

Pickering  v.  Appleby 

330 

Pedder  v.  Watt 

137 

V.  Dowson 

61 

Peerson  v.  Lemaitre 

445 

V.  Fisk 

100 

Pcirce  v.  Boston 

246 

Pidcock  V.  Bishop 

274 

V.  Butler 

51 

Pierce  v.  Benjamin 

472 

V.  Rowe 

430 

V.  Fuller 

256 

V.  Somersworth 

522 

I'.  Parker 

220 

V.  Tobey 

364 

j;.  Sclieck 

46 

Pcisch  V.  Dickson 

69 

V.  The  State 

5 

Pellccat  V.  Angell 

260 

V.  Wood 

278 

xlii 


INDEX  TO   CASES   CITED. 


Page 

Pierce  v.  Woodward  257 

Pierson  v.  Eagle  Screw  Co.  442 

Pigeon  r.  Osborn  249 

Pigot's  Case  223,  226 

Pike  r.  Warren  361 

Pilford's  Case  494 

Pilkington  r.  Scott  256 

Pilmorc  v.  Hood  276 


The  Northwestern  Bank  134 
429 


Pindall  v 

Pinhorn  v.  Tuckington 

Pinkerlon  v.  Caslon  203 

Pinkston  v.  Iline  505 

Pinncl's  Case  130,  131 

Pinney  v.  Barnes  236,  464 

V.  Gleason  491 

Piqua  Bank  v.  Knoop  527 

Piquet  V.  Corniick  248 
Piseataqua  Bridge  v.  New  Hamp- 
shire Bridge         518,519,522,523, 
525, 526 
Pitcher  v.  Livingston  442,  449,  500,  501 

r.  Wilson  316 

Pitkin  V.  The  Long  Island  II.  R. 

Company  316 

Pits  V.  Wordal  201 

Pitts  i^.  Beckett  291,294 

rianche  r.  Colbnrn  35,  191 

r.  Fletcher  82,  260 

Planters'  Bank  v.  Markham  51 

y.  Sharp     510,514,535 

V.  Snodgrass  407 

V.  Stockman  143 

Plimpton  V.  Curtiss  317 

Plowman  v.  McLane  163 

Plomer  v.  Long  143,  145 

Plumer  v.  Warren  Ins.  Co.  20 

Plumraer  v.  McKean  437 

Pluntleigli  V-  Dawson  493 

Polglass  1-.  Oliver  133 

Polhill  r.  Walter  271 

Pollard  V.  Baylor  393,  394 

V.  Sclioly  385,  392 

Pollock  v:  Stables  51 

V.  Stacy  15 

Polydorc  r.  Prince  111 

Poincroy  v.  Burnett  502 

Ponifret  v.  Kicroft  46 

Ponder  w.  Carter  371 

Poole  V.  Tumbridge  -148 

Pope  V.  Brett  202,  210 

?;.  Tuiistall  195 

Pordage  r.  Cole  39,  41 

Portland  Bank  v.  Aptliorp  527 

V.  Brown  143,  146 

Porter  v.  Blood  174 

I'.  Lane  242 

7".  Morris  251 

V.  Munger  381 

V.  Sawyer  262 

V.  Stewart  172 

V.  Taylor  127 

Port  V.  Jackson  462 


Page 

Postlcthwait  v.  Garrett  390,  398 

Postmaster-General  v.  Furhcr    144, 146 

Pott  r.  Clcgg  351 

r>.  Todhunter  67 

Potter  V.  Brown  111 

V.  Morland  49 

V.  Ontario  &  Livingston  Mut. 

Ins.  Co.  9 

V.  Yale  College  390 

Pottingcr  v.  Wightman  94 

I'oucher  v.  Hollcy  241 

Pouder  v.  Graham  529 

Poultcr  V.  Killingbeck  314 

1,'owcll  V.  Biddle  62,  74 

V.  Bradlec  .  270 

V.  Divctt  224 

V.  Hinsdale  477 

V.  Horton  48 

V.  Little  126 
V.  M.  &  B.  Manuf.  Co.  495,  497 

V.  Newburgh  468 

V.  Salisl)ury  459 

V.  Smith  461 

V.  Waters  397,  422 

Power  V.  Whitmore  50 

Powers  V.  Ware  227 

P.  W.  &  B.  K.  R.  Co.  I'.  Story  461 

Prathcr  v.  McEvoy  246 

Pratt  V.  Adams  386,  391 

V.  Bryant  474 

V.  Hackctt  202,  212 

V.  Humphrey  303 

V.  Willcy  386 

Preble  v.  Baldwin  305,  315 

Prentice  v.  Kccd  215 

Prentiss  v.  Russ  273 

V.  Savage  95 
Prcsb.  Church  v.  City  of  New  York  186 


Prcsl)rcy  v.  Williams 

Prcscot  V. 

Prescott  V.  Trueman 


177 
25 
502,  503 
251 
199 
396 
60 
230 
436,  437 
490 
324 
69,  77 
297 


President,  &c.  v.  Ogle 
Preston  v.  Christmas 
V.  Jackson 
V.  Merceau 
Prevost  V.  Gratz 
Price  I'.  Green 

V.  Justrovc 

V.  Lea 

V.  Page 

V.  Ricliardson 

V.  Severn  452 

V.  Upsliaw  369 

Priestley  v.  Fonlds  19 

Prince  v.  Fuller  245 

Pringle  v.  IMcClcnaclian  213 

Priteliard  r.  Howell  346 

Proctor  V.  Jones  322 

V.  Sargent  256 

Propert  V.  I'arkcr  287 

Projirietors  of  Ken.  Purchase  v.  La- 

boreo  539 


INDEX  TO  CASES  CITED. 


xliii 


I 

\nge 

Page 

Prosser  v.  Browagc 

443 

Rapier  v.  Holland 

243 

V.  Hooper 

190 

Rapp  V.  Palmer 

53,54 

Providence  Bank  v.  Billings 

514, 

516. 

V.  Rapp 

5 

526, 

527, 

530 

Ravee  v.  Farmer 

211 

Prugnell  v.  Gosse 

254 

Rawlinson  v.  Oriet 

232 

Puckell  V.  Smith 

463 

V.  Shaw 

222 

Pugli  V.  Bissell 

536 

Rawlings  v.  Bell 

271 

V.  Bussell 

536 

Rawlins  v.  Jenkins 

13 

V.  Chesseldine 

169 

Rawstorne  v.  Gandell 

129 

V.  Duke  of  Leeds 

176 

Ray  V.  Sherwood 

109 

V.  Leeds 

15 

Raymond  v.  Bearnard 

151 

Pullen  V.  Shaw 

228 

V.  Roberts 

15 

Puncombe  v.  Rudge 

499 

Rayner  v.  Linthorne 

292 

Purchell  v.  Salter 

249 

Rea  V.  Gibbons 

212 

Purdy  V.  Delavan                206 

207 

209 

Read  v.  Dupper 

242 

Pusey  V.  Clem  son 

222 

V.  Goldring 

151,154 

Putnam  v.  Putnam 

105 

V.  Granberry 

48 

V.  Ritchie 

496 

V.  Nash 

305,  309 

V.  Tillotson 

49 

V.  Rann 

36 

Pykc  V.  Thomas 

256 

Reade  v.  Lamb 
Ream  v.  Rank 
Reay  v.  White 

338 
4^8 
148 

Q. 

Reed  v.  Bartlett 
V.  Boardman 

199 
142 

Quackenbush  v.  Danks 

534 

V.  Evans 

297 

Quantock  v.  England 

342 

,379 

V.  Shaw 

219 

Quarles  v.  Brannon 

394 

V.  Smith 

397 

V.  George 

181 

.          V.  Upton 

136 

Quince  v.  Callender 

97 

Rees  V.  Overbaugh 

226 

Quimby  v.  Putnam 

364 

Reeters  v.  Opie 

41 

Quick  V.  Ludborrow 

45 

.  222 

Reeves  v.  Hearne 

195 

Quinebaug  Bank  v.  Tarbox 

'  234 

Rehoboth  v.  Hunt 

510 

Quincey  v.  Quincey 

74 

Reid  V.  McNaughton 

362 

Quincy  v.  Tilton 

190 

r.  Rensselaer  Glass 
Re  illy  v.  Jones 

Factory  380, 

381 

438,  440 

R. 

Remon  v.  Hayward 
Reniger  v.  Fogossa 

68 
46 

Rabone  v.  Williams 

249 

,  250 

Remer  v.  Bank  of  Columbia          50,  51 

Radley^i'.  Manning 

392 

,  402 

Rippey  v.  Miller 

451 

Raikes  v.  Todd 

296 

,297 

Rex  V.  Adderley 

176 

Railton  v.  Mathews 

273 

V.  Allen 

393 

Raitt  V.  Mitchell 

50 

V.  Cumberland 

177 

Rake  v.  Pope 

319 

V.  Girdwood 

5 

Ralph  V.  Brown 

234 

V.  Inhabitants  of  St. 

Mary's        25 

Ralston  v.  The  State  Rights 

450 

V.  LoUey 

116 

Ramsdale  v.  Horton 

134 

V.  Scammonden 

66 

Ramsdell  r.  Morgan 

404 

V.  Stevens 

177 

Ramsden  v.  Hylton 

14 

Reynolds  I'.  Doyle 

371 

Ramsour  v.  Thomas 

143 

V.  Fenton 

118 

Rand  v.  Mather 

299 

V.  Magness 

69 

Randall  v.  Moon 

130 

V.  Pinhowe 

199 

V.  Morcjan 

311 

Rhodes,  ex  parte 

242 

V.  Wilkins 

375 

Rice  V.  Churchill 

160 

Eandle  v.  Fuller 

242 

V.  Gist 

261 

V.  Harris 

306 

V.  King 

463 

Randleson,  ex  parte 

141 

V.  Mather 

422 

Rankin  v.  Blackwell 

230 

V.  Welling 

393 

V.  Woodworth 

373 

Rich  V.  Lord 

14,  221 

Eanney  v.  Edwards 

218 

V.  Topping 

387 

Rannie  v.  Irvine 

256 

Richards  v.  Bi-ockenbrou 

gh        201,  202 

Rapelye  v.  Anderson 

422,  425 

V.  Brown 

385,  417 

xliv 


INDEX  TO   CASES   CITED. 


Page 

Page 

Richards  i'.  Drinker 

203 

Robinson  v.  Fiske. 

11 

V.  James 

248 

V.  Garth 

293 

I'.  Porter 

280 

V.  Green 

30 

Richardsou  v.  Fen 

342,  343 

V-  Harm  an 

505 

V.  Jackson 

157 

V/  Noble 

469,  492 

V.  Nourse 

215 

V.  Frescott 

120, 124 

V.  Kichardson 

378 

V.  Robinson 

243 

V.  Rickman 

196 

Robson  V.  Bennett 

135 

V.  "Watson 

71 

Rockwell  r.  Ilubbell 

534 

Ricliford  v.  Ridge 

135 

Rodcs  V.  Blythe 

430 

Richmond  K.  R.  Co.  v.  The  Louisa 

Rodgers  v.  Clifton 

443 

R.  R.  Co.              516, 

519 

522,  523 

Hodman  v.  Hedden 

462 

Rickert  v.  Snyder 

498, 

501,  503 

Rodwcll  V.  rhillips 

313 

Riddle  v.  Brown 

315 

Roe  V.  Tranmarr 

16,  17 

Rider  v.  Fisher 

204 

Rogers  ?'.  Atkinson 

61 

V.  Ocean  Ins.  Co. 

242 

V.  Bradshaw 

522 

Rigby  V.  Hewitt 

456 

V.  Coleman 

120 

Rigden  v.  Martin 

217,218 

V.  Colt 

5 

V.  Wolcott 

446 

V.  Eagle  Fire  Ins 

Co.              16 

Riggs  V.  Dooley 

374 

V.  Fales 

442 

Riley  V.  Carter 

251 

V.  Kneeland 

297 

Riley's  Admin'rs  v.  Vanhouten           12 

V.  Mechanics'  Ins 

Co.      52,  54, 

Rineliart  r.  Olwine 

486 

55 

Ripka  V.  Sergeant 

493 

V.  Parrey 

254 

Ripley  v.  Chipman 

172 

t'.  Rathbun 

404 

V.  McClure 

188 

V.  Spejice 

476 

Rishton  i\  Cobb 

62 

Rogerson  v.  Ladbroke 

248 

Ritchie  v.  Atkinson 

39,  44 

Rohr  V.  Kindt 

506 

V.  Smith 

259 

Roniig  i\  Romig 

471 

V.  Williams 

222 

Rondeau  v.  Wyatt 

333,  334,  336 

Rivers  v.  Walker 

217 

Roosevelt  v.  Kellogg 

92 

Rix  V.  Strong 

165 

V.  Mark 

349 

Rixford  v.  Nye 

202,  210 

Root  V.  Lowdes 

445 

Roach  V.  Garvan 

120 

V.  Taylor 

243 

Robb  V.  Halsey 

391 

Rose  V.  Cunynghamc 

294 

V.  Montgomery 

41,45 

V.  Dickson 

386 

Robbins  v.  Farley 

349 

V.  Spark 

211 

V.  Luce 

158 

Rosevelt  v.  Fulton 

281 

Robert  v.  Garnie 

142,  143 

Ross  V.  Green 

261 

Roberts  v.  Barker 

50,  59 

V.  Knight 

245 

V.  Beatty        IGl, 

163, 

165,  173 

V.  Ross 

346 

r.  Goff 

404 

r.  Ladgbecr 

257 

V.  liavelock 

34 

Rotliciy  V.  Munnings 

373 

V.  Mackoul 

242 

Routlcdgc  r.  Ramsay 

346 

V.  Marictt 

211 

Rowe  r.  Bellaseys 

417 

V.  The  Kockbotto 

m  Co.        319 

V.  Young 

148 

V.  Tremoile 

. 

417 

Rowland  v.  Bull's  Ex'rs 

412 

V.  Trenayne 

390, 

393,415 

Rowley  V.  Gibbs 

383,  478 

V.  Tucker 

294,  318 

Royalton  v.  The  R.  &  W. 

Turn- 

Robertson  v.  Clarke 

50 

pike  Co. 

463 

V.  French 

6,  13,  29 

Royce  r.  Barnes 

249 

V.  Jackson 

48,53 

Ruclier  v.  Conyngham 

415 

V.  Money 

50 

Rucker  v.  (/animcycr 

292,  294 

V.  Vaughan 

336 

r.  llannay 

342 

Robinet  v.  Cobb 

212 

Ruckman  ;;.  Bryan 

261 

Robinson  i'.  Alexander 

309 

Ruiblcr  V.  Price 

432 

V.  Batchelder 

67, 

158,  160 

Ruding  I'.  Smith 

81,84,  110 

V.  Bland     82,  84,  95 

,  96,  100. 

Rudgc  r.  Birch 

250 

253, 

382, 432 

Rudston  r.  Yates 

204 

V.  Campbell 

495 

liulVr.  Bull 

374 

V.  Cook 

153 

Rugglcs  V.  Kceler 

102,  103.  376 

V.  Doolittle 

143 

Rusliibrth  v.  Iladficid 

53,  57 

INDEX   TO    CASES   CITED. 


xlv 


Page 

Eusscl  V.  Field  232 

V.  Palmer  4G5 

Eussell  V.  Branham  270 

V.  Clark  272 

i;.  Coffin  16 

V.  Dc  Grand  252 

V.  Ormsbec  161,  174 

V.  Pyland  2C2 

V.  Sladc  317 

Eust  V.  Gott  262 

V.  Larue  263 

Eyan  v.  Hall  65 

Eyder  v.  Hathaway  474 

V.  Thayer  467 


Saratoga  E.  E.  v.  Eow  278 

Sadler  v.  Eobins  118 

Safford  v.  Stevens  211 

Sage  V.  Wilcox  297 

Sainsbury  v.  Matthews  312,  313 
Sainter  v.  Ferguson            256,  434,  441 

Salmon  v.  Wooton  232 

Salter  w.  Burt  161,  178 
Saltmarsh  v.  Planters'  &  Merchants' 

Bank  422 

Saltoun  17.  Houstoun  23 

Samon's  Case  205 

Sampson  v.  Easterby  23 

Sand  V.  Ehodcs  195 

Sanders  v.  Branch  Bank  131 

Sandinam  v.  Breach  14 

Sanford  v.  Handy  275 

V.  Hayes  356 

V.  Eaikes  61 

Sands  v.  Church  399 

V.  Lyon  177,  178 

V.  Taylor  484 

Sansom  v.  Ehodes  173 

Sapsford  v.  Fletcher  240 

Sargent  v.  Graham  154 

V.  Franklin  Ins.  Co.     382,  470, 

473,  481 

Satterlee  v.  Frazer  263 

V.  Mattherson  534 

Sauerwein  i\  Brunner  395 

Saul  V.  His  Creditors  80,  86,  88 

Saunders  y.  Frost  154 

V.  Graham  153 

V.  Hatterman  270 

V.  Topp  324 

V.  Wakefield  296,  297 

Saunderson  y.  Bell  127 

V.  Jackson  285, 288, 289, 298 

V.  Piper  75 

■  Savary  I,'.  Goe  159,  161 

Savoury  v.  Chapman  126 

Saward  v.  Austey  14 

Sawrey  v.  Eumney  63 

Sawteil  V.  Sawtell  113 


Page 

Sawyer  v.  Hammond 

15 

V.  Hammatt 

47 

V.  Mclntyre 

507 

V.  Tappan 

142 

Sayer  v.  Waggstaff 

196 

Scofield,  et  al.  v.  Day 

98 

Scale  V.  Fothergill 

209 

Scanlan  v.  Wright 

74 

Scheiffeln  v.  Carpenter 

507 

Schermerhorn  v.  Schermerhor 

n        240, 

241,  242 

Schley  v.  Lyon 

473,  477 

Schofield  V.  Corbett 

243 

Schoole  V.  Noble 

242 

Schooner  Eeeside 

52,59 

Schoonover  v.  Eowe 

446 

Schrcger  v.  Garden 

150 

Schroeppel  v.  Corning 

405 

Schneider  v.  Norris 

289. 290 

Schuyler  v.  Van  Der  Veer 

204 

Schuylkill  Nav.  Co.  v.  Moore 

13 

Scott  V.  Barnes 

202 

V.  Bourdillion 

48 

V.  Fisher 

142 

V.  Haddock 

374 

V.  Irving 

54,  57 

V.  Lewis 

397 

V.  Lloyd 

38.5,  417 

V.  Nesbitt 

253,  404 

V.  Eay 

142 

V.  Eivers 

241 

V.  Shepherd 

458 

V.  The  Eastern  Counties  Eail- 

way  Co.  324 

V.  Trent  127 

Scrimshire  v.  Scrimshire  107,  110 

Scruggs  V.  Gass  134 

Scrugham  v.  Carter  479 

Scorell  V.  Boxall  313 

Scurry  v.  Freeman  401,  402 

Seaborne  w.  Blackston  127 

Seagood  v.  Meale  294,  310 

Scamore  v.  Harlan              ■  449 

Searle  v.  Keeves  323 
Sears  v.  The  City  of  Boston    91,  92,  93 

V.  Brink  297 

V.  Lyons  449 
Seaton  v.  The  Second  Municipa- 
lity 460 
V.  Benedict  150 
Seawell  v.  Henry  134 
Seddon  v.  Senate  6 
V.  Tutop  211 
Sedgworth  v.  Ovcrend  128 
Seers  v.  Fowler  42 

V.  Turner  232 

Selby  V.  Hutchinson  35 

V.  Selby  287 

Selleck  V.  French  380,381 

Sellick  V.  Addams  213 

Selway  v.  Fogg  278 

Selwood  V.  Mildmay  63 


xlvi 


INDEX   TO   CASES   CITED. 


Page 

Page 

Seneca  County  Bank  v.  Schci 

mer- 

Shindler  v.  Houston 

322,  324 

horn 

385 

Ship  Robert  Fulton 

232 

Senior  v.  Armitage 

50,  60 

Shii)pey  v.  Derrison 

285 

Seeley  v.  Bishop 

46 

Shipton  V.  Capon 

36,  171 

Sessions  v.  Kcynokls 

264 

Shirley  i'.  Shirley 

290 

V.  Richmond 

411 

437 

Shirtz  V.  Shirtz 

497 

Seton  V.  Shule 

290 

Shober  i'.  Hauser 

385,  395 

Sevan  v.  Lappan 

453 

Shoemaker  v.  Benedict 

•      362 

Severn  v.  Clerk 

23 

Shotwell  V.  Wendover 

476 

Sewall  V.  Fitch 

236 

Shore  v.  AVilson                   12, 

68,  72,  78 

V.  Henry 

15 

Short  V.  McCarthy 

372 

V.  Sparrow 

219 

t'.  Stone 

179,  180 

Seymour  v.  Davis 

324 

Shorter  v.  Smith 

518.  522 

V.  IMarvin 

411 

Shortrede  v.  Check 

297 

V.  Minturn 

130 

Shuck  V.  Wight 

394 

V.  Sexton 

143 

Shuraway  v.  Reed 

136 

V.  Strong 

385 

V.  Stillman 

120 

Shackelford  v.  Hand  ley 

282 

Shute  V.  Dorr 

316 

V.  Morriss 

422 

423 

V.  Taylor 

435,  439 

Shaeffer'u.  Sleade 

275 

Shutford  V.  JBorough 

370 

V.  Lee 

463 

Shrelkeld  v.  Fitzhugh 

500.  501 

Shannon  v.  Comstock 

469 

506 

Shrewsbury  v.  Blount 

272 

Shapley  v.  Bellows 

241 

242 

Sibley  v.  Fisher 

229 

Sharp  V.  No  well 

209 

r.  Holden 

15 

V.  Price 

452 

V.  Lumbert 

357 

Sharpley  v.  Hurrel 

415 

Siboni  v.  Kirkman 

45 

Shaw  V.  Allen 

349 

Sibree  v.  Tripp 

131 

V.  Badger 

171 

Sickles  V.  IMather 

353 

V.  Finney 

293 

V.  Pattison 

30,  34 

V.  Gookin 

243 

Sicklcmore  v.  Thistleton 

13 

V.  Holland 

481 

Siddall  V.  Rawcliff 

132 

V.  Leavitt 

66,  67 

Sigourneyu.  Drury 

361,  363 

V.  Nudd 

481 

Silshee  v.  Ingalls 

300 

V.  Picton 

142 

Silsbuy  V.  McCoon 

476 

V.  Pratt 

143 

Silver  Lake  Bank  v.  Harding 

124 

V.  Shaw 

337 

Simmonds  v.  Swaiue 

206,  210 

V.  The  Turnpike  Co. 

191 

Simon  V.  Metivier 

333 

I".  White 

497 

V.  Motivos 

292 

V.  Wilkins 

500 

V.  Lloyd 

196 

Shearer  v.  Handy 

202 

203 

Simonds  v.  Catlin 

293 

Sheehv  v.  Mandevillo 

136 

Simons  v.  Johnson 

14,  221 

Sheftall  V.  Clay 

342 

V.  Walter 

381 

Shelby  v.  Guy 

104 

,  378 

Simpson  v.  Bloss 

252 

Sheldon  v.  Benhara 

68 

V.  FuUenwider 

397 

V.  Kendall 

251 

V.  Hanley 

241 

Shelling  v.  Farmer 

211 

V.  Hart 

241 

Shelton  )'.  Gill 

404 

V.  Henderson 

65,  73 

V.  TifBn 

91 

V.  Ingham 

142,  144 

Shepard  ;;.  Ward 

127 

17.  Stackhouse 

229 

Shcpjiard  v.  Stites 

204 

V.  Warren 

401 

Shepherd  v.  Hampton 

480 

Sims  V.  Bond 

249 

V.  Johnson 

473 

,  480 

V.  Clarke 

134 

V.  Sawyer 

261 

V.  Goudelock 

371 

Shcpburne  v.  Shaw 

294 

V.  Hutchins 

337 

Sherman  v.  Ballon 

240 

V.  Willing 

381 

V.  Wakeman 

346 

Simson  v.  Ingham 

144 

V.  Withers 

369 

Sinclair  v.  Bowles 

34,37 

Shcrratt  v.  Bentlcy 

26 

V.  'i'arliox 

449 

Sherwood  v.  Sutton 

378 

I'.  The  Bank  of  So.  Car.      372 

Sliill'iier  V.  Gordon 

252 

Singleton  v.  Hilliard 

53 

Shipley  v.  Waterhouse 

361 

V.  Kennedy 

451 

Shields  v.  Petteo 

483 

V.  Lewis 

430 

INDEX   TO   CASES   CITED. 


xlvii 


Pago 

Page 

Sir  Wollaston  Dixie's  Case 

402 

Smith  V.  Smith            117, 

162 

440,  441 

Sivewriglit  v.  Aciiibald 

294 

I'.  Spinolla 

100,  102 

Skeels  v.  Ciiickering 

206 

V.  Stafford 

222 

Skillings  v.  Coolidgc 

210 

V.  Strong 

498 

Skip,  er  parte 

404 

V.  Surman  287,312 

,313 

,325,334 

Slack  V.  Brown 

149 

r.  The  Atlantic  M. 

F.  Ins.  Co. 

Slater  i;.  Lawson 

360 

232,  234 

V.  Magraw 

45 

V.  The  Heirs  of  Bond 

377 

Slaughter  v.  McRae 

486 

V.  Thorn 

346 

Sleght  V.  Hartshorne 

48 

V.  Tui'ner 

539 

Slingerland  v.  Morse           165 

,166 

,  306 

V.  Westmoreland 

256 

Slocum  V.  Despard 

45 

V.  Wigley 

144 

Slocumb  v.  Holmes 

369 

V.  Wilson 

51,  60 

Sloan  V.  Sommers 

393 

V.  Wright 

53 

Sloman  v.  Walter 

441 

Smitherman  v.  Smith 

197 

Slosson  V.  DufF 

386 

Smyth,  ex  parte 

33 

Sloop  Mary 

415 

V.  McMasters 

262 

Sluhey  v.  Heyward 

324 

Sneed  v.  Ewing 

107 

Sluby  V.  Chainplin 

342 

V.  Weister 

.     144 

Slyhocf  V.  Flitcraft 

232 

V.  Wiggins 

172 

Small  V.  Quincy 

169 

Snell  V-  Foussat 

123 

Smetlmrst  v.  Woolston 

472 

.481 

Snelling  v.  Lord  Huntingfield 

316 

Smith  V.  Arnold 

295 

Snoddy  v.  Cage 

378 

V.  Barthole 

198 

Smook  V.  Hellyer 

201,  202 

V.  Berry 

481 

Snow  V.  Conant 

244 

V.  Bickmore 

139 

253 

V.  Franklin 

200 

V.  Bishop 

378 

V.  Perry 

133,  157 

V.  Brown             67,  131 

199 

200 

V.  AVare 

37 

V.  Brash 

387 

V.  Warner 

330 

V.  Condry 

459 

Snowden  v.  Warder 

52 

V.  Crooker 

226 

,230 

Snyder  v.  Findley 

272 

V.  Dawson 

353 

369 

V.  Wise 

124 

V.  Demarest 

203 

So.  Life  Ins.  &  Tr.  Co.  v. 

Cok 

331 

V.  Dickenson 

435 

Society,  &c.  v.  New  Haven 

514 

V.  Dun  lap 

481 

492 

V.  Wheeler 

539 

V.  Fox 

372 

Solly  V.  Forbes 

221,  222 

V.  Frederick 

16 

Solomons  v.  McKinstry 

211 

V.  Forty 

357 

V.  Jones 

395 

V.  Griffith 

470 

483 

Somervillc  v.  Somcrville 

83 

V.  Gugerty 

172 

Somes  V.  Brewer 

280 

V.  Hayncs 

168 

Sommer  v.  Wilt 

449 

V.  Eealy 

102 

Soome  V.  Gleen 

415 

V.  Hill 

374 

Sorrelle  v.  Sorrelle 

243 

V.  Hubbs 

279 

Souch  V.  Strawbridge 

315 

319,337 

V.  Jameson 

128 

Soulden  v.  Van  llensselaer 

365 

V.  Jeftryes 

71 

Southworth  v.  Smith 

155,  158 

V.  Jones 

132, 

293 

Soward  v.  Palmer 

148 

V.  Johnson 

203 

211 

Spaulding  v.  Bank  of  Muskingum   385 

V.  Lewis 

118 

Spalding  v.  Vandercook 

150 

V.  Loomis 

158 

Sparling  v.  Smith 

342 

V.  Lowden 

241 

Sparks  i'.  Ganigues 

147 

V.  Lowell 

37 

V.  Purdy 

.     471 

V.  Lloyd 

143 

Sparry's  Case 

232,  233 

V.  Mawliood 

259 

Spear  v.  Hooper 

210 

V.  McGowan 

226, 

231 

V.  Newell 

58 

r.  ]SIead 

82 

Spears  v.  Hartley . 

379 

V.  Nichols 

118 

Spencc  t'.  White 

242 

V.  Nicolls 

120, 

123 

Spencer  v.  Cone 

336 

V.  Parkhurst 

15 

V.  Tisue 

127 

V.  Parsons 

535 

Spiccr  V.  Cooper 

48 

V.  Richardson 

468 

Spikes  v..  English 

449,  451 

.  V.  Sanborn 

169 

Spong  V.  Wright 

349 

xlviii 


INDEX  TO   CASES   CITED. 


.Page 

Spoor  V.  Bookelin  476 

V.  Hollrmd  47G 

Spring  V.  Chase  499 

V.  Gray  344,  3^8,  369 

Springfield  Bank  v.  :Mcrrick      252,  253 

Sproulc  V.  Ford  272 

Squire  v.  Grevell  209,  212 

V.  Whipple  316 

Squires  v.  Whiskan  261 

St.  Albans  St.  Co.  v.  Wilkins  172 

Staats  V.  Howlett  297 

V.  Ten  Evck    441,  498,  499,  500, 

504 

Stackdale  v.  Young  495 

Stackwood  v.  Dunn  250 

Stadt  V.  Lill  29G 

Stafibrd  v.  Bryan  349 

V.  Newsom  268 

.    V.  llichardson  371 

Stamford  Bank  v.  Benedict  143 

Stair  V.  Kobinson  532 

Stanard  v.  Eldridge  503 

Staniland  r.  Hopkins  25 

Stanley  v.  Towgood  508 

V,  Jones  263 

V.  Kempton  399 

V.  Stanley  515 

Stanly  v.  Hendricks  304 

Stannard  v.  Eldridge  502 

Stansfield  v.  Johnson  292 

Stanton  v.  Henry  212 

V.  Small  484,  485 

Stapleton  v.  Conway  98 

V.  Nowell  150 

Stark  V.  Tarker  172 

Starkweather  v.  Loring  124 

Starr  v.  Bennett  270 

V.  Pease  494 

Startup  V.  Cortuzzi  481 

V.  Macdonald  161 

State  V.  Dunnavant  8 

V.  Hey  wood  514 

V.  Patterson  107 

V.  Phalea  538 

V.  Sterling  538 

State  Bank  v.  Cowan  407 

r.  Hunter  411 

V.  Littlcjolm  197 

V.  SeawcU  375,  376 

V.  Welles  134 

V.  Wooddy  356 

State  of  Missouri  v.  Hawthorne        538 

Satavers  v.  Curling  44 

Steamboat  Co.  v.  Whillden         449,  459 

Stead  V.  Dawber  179 

Stearns  v.  Barrett  256,  259 

V.  JMarsh                       '  477 

V.  Swift  497 

Stcbbins  v.  Smith  300 

Steele  v.  Hoe  297 

V.  AVhipple  397 

Steinman  u.  Magnus  131 


Page 

Stephens  v.  Squire  304 

Steptoe's  Adm'rs  v.  Harvey's  Ex'rs  385 

Sterling  v.  Peet        "  500 

Stevens  v.  Austin  277 

V.  Briggs  130 

V.  Cushing  193 

V.  Davis  387,  413 

V.  Fuller  273  . 

V.  Gaylord     •  222 

V.  Hartwell  457 

V.  Judson  280 

V.  Layford  453 

V.  Lincoln  401 

V.  Reeves  54,  56,  57 

V.  Stevens  315 

V.  Webb  170 

Stevenson  v.  Kleppinger  41 

Steward  v.  Lee  129 

Stewart  v.  Aberdein  51,  57 

V.  Cass  201 

V.  Donelley  163 

V.  Drake  500 

V.  Noble  504 

V.  U.  S.  Ins.  Co.  248 

Stiles  V.  White  271 

Still  V.  Hall  246 

17.  Hoste  77 

Stimpson  v.  The  Railroads  450 

St.  John  V.  Garrow  365 

Stocking  V.  Hunt  535 

V.  Sage  308,  468 

Stockton  V.  Frey  199 

V.  Turner  26 

Stocks  V.  Van  Leonard  378 

Stoddard  v.  Martin  262 

Stodden  v.  Harvey  173 

Stoever  v.  Wilmarth  264 

V.  Whitman  52 

Stokes  V.  Moore  287 

Stone  V.  Dcnnison  319,  338 

V.  Denny  272 

V.  Fowle  169 

V.  Marsh  128 

U.Miller  198 

V.  Seymour  142,  143 

V.  Vance  67 

V.  Ware  404 

V.  Wilson  230 

Stonehcwer  v.  Farrar  205,  208 

Stoncy  V.  Amer.  Life  Ins.  Co.  399 

Storcr  V.  Gordon  44 

Storke  v.  DcSmeth  210 

Story  V.  Finnis  150 

V.  Livingston  147 

V.  Patten  240 

Stoughton  V.  Lynch  430 

Stourbridge  Can.  Co.  v.  Wheeley       19 

Stout  r.  Jackson  500 

Stovcld  y.  Brewin  150 

Stow  ?;.  Stevens  169 

Stracey  v.  Deey  249 

Strader  v.  Lambeth  69 


INDEX   TO   CASES   CITED. 


xlix 


Page 

Strafford  v.  Clark  150 

Stratou  V.  Rastall  67 

Street  v.  Bitchy  439 
Stribling  v.  Bank  of  the  Valley  386, 41 1 

Strithrost  r.  Graeme  376 

Strode  r.  Ilusscl  77 

Stroh  I'.  Uhrich  247 

^Strong  V.  Barnes  15 

^^            I'.  Harvey  153 

r.  Strong  129,477 

Strother  v.  Lucas  95 

Stuart  V.  Commonwealth  243 

Stubbs  V.  Page  499 

Stukeley  v.  Butler  26 

Sturges  V.  Crowninshield  531,  532, 
535,537,539 

Start  V.  Hellish  369 

Stuyvesant  v.  WoodrufiF  46 

Styles  ?;.  VVardle  177 

Sucklinge  v.  Coney  154 
Suffolk  Bank  v.  The  Worcester 

Bank  148,  151 

Sugden  y.  Lolley  116 

Sullidge  V.  Wade  449 

Sumner  v.  Williams  11,  442 

Sunter  v.  Lehre  495 

Surcome  v.  Pinniger  310 

Sutton  V.  Hawkins  156 

V.  Horn  216 

V.  Tatham  51 

V.  Warren        105,  107,  108, 109 

Suydam  v.  Bartle  41 1 

V.  Jenkins    383, 471 ,  472,  473, 

476,478,480,481 

V.  Westfall  411 

Suyder  v.  Vaux  475 

Swartwout  v.  Payne  390,  393 

Swanson  v.  White  386 

Sweet  r.  Lee  290,296,316 

V.  Harding  161 

V.  Jenkins  59 

V.  Patrick  442 

Swett  V.  Patrick  500,  501 

Swift  V.  Barnes  478,  481 

V.  Kelly  107 

Swiney  v.  Barry  225 

Syers  v.  Bridge  55 

V.  Jonas  49,  60 

Sykesv.  Giles  127,128 

Symonds  v.  Cockerill  385,  417 


T. 


Taftr.  Montague  37 

Tagart  v.  The  State  of  Indiana        376 
Talbot  r.  Gray  175 

Talliaferro's  Exr's  u.  King's  Adm'r  430 
Talmadge  v.  The  Rensselaer  &  Sa- 
ratoga R.  R.  Co.  319 
Talvert  r.  West  324 


Page 

Tandy  v.  Tandy  209 

Tanner  v.  Livingston  499 

y.  Smart         345,346,348,350, 

352,353 

Tapley  v.  Martens  135 

Tarleton  v.  Backhouse  428 

V.  Baker  262 

V.  McGawley  458 

V.  Tarleton  120 

Tarpley  v.  Hamer  534 

Tatam  v.  Williams  369 

Tate  V.  Greenlee  292 

V.  Wellings  385,  388,  393 

Tawney  v.  Crowther  285,  298 

Tayloe  v.  Sandiford  142 

Taylor  v.  Ashton  272 

d.  Atkyns  v.  Horde  15 

V.  Backhouse  219 

V.  Baldwin  69 

V.  Briggs  48,  503 

V.  Carpenter  450 

V.  Fleet  266 

V.  Gallup  161 

V.  Kymer  144 

V.  Maguire  459 

V.  Mills  461 

V.  Moseley  229 

V.  Nicolson  202 

V.  Popham  242 

V.  Ross  297 

V.  Spears  371 

V.  Waters  241 

V.  Weld  279 

Teal  V.  Auty  314 

Tegetmeyer  v.  Lumley  243 

Tempest  v.  Fitzgerald  321 

V.Kilmer  480,481 

Tenant  v.  Elliott  253 

Tenet  v.  Taylor  510 

Tenett  ».  Taylor  511,514 

Ten  Eyek  v.  Wing  346 

Terry  v.  Duntze  41 

Thacher  v.  Dinsmore  136 

Thackoorseydass  v.  Dhondmull        261 

Thallhimer  v.  Brinckerhoff  263 

Thatcher  v.  Gammon  397 

Thaxton  v.  Edwards  160 

Thayer  y.Jirackett  155 

v.Roch  299,314 

V.  Turner  277 

V.  Viles  315 

The  Ada  18 

The  Governor  v,  Gordon  372 

The  King  v.  Brampton  110 

V.  Inhabitants  of  Sedgley  28 

V.  Laindon  69 

r.  Mainwaring  13 

The  Mary  100 

The  Paragon  50,  53 

The  Queen  v.  Inhabitants  of  Stoke- 

upon-Trent  49 


VOL.  II. 


INDEX  TO   CASES   CITED. 


Page 

The  Queen  v.  Ncvill 

14 

The  State  v.  Hallett 

91 

Theobald  r.  Colby 

252 

Thctford  v.  Hubbard 

153,157 

Thibault  v.  Gibson 

384 

Thirableby  v.  Barron 

220 

Thinuc  v.  Rigby 

204 

Thorn  V.  Bigland 

271 

Thomas  v.  AtHick 

177 

V.  Allen 

462 

V.  Cadwallader 

45 

V.  Catheral 

387 

V.  Cook 

303 

V.  Croswell 

445 

V.  Davis 

175 

V.  Dickinson 

315 

V.  Evans 

154 

V.  Freelon 

231, 232 

V.  Graves 

58 

V.  Heathorn 

130,  131 

V.  Hopper 

244 

V.  Mason 

404 

V.  McCann 

272 

V.  Molier 

205 

V.  O'Hara 

58 

V.  Roosa 

162 

V.  Sorrell 

23 

V.  Thomas 

62,76 

V.  Todd 

134 

V-  Williams 

298, 299,  309 

V.  Cleaves 

400 

Thompson  v.  Alger 

484,485 

V.  Berry 

397 

V.  Brown 

144 

V.  Guthrie 

504 

V.  Jones 

394 

i\  Ketcham 

95,  111 

V.  Marrow 

497 

V.  Powles 

391 

V.  Shattuck 

461,508 

V.  The  N.  Y.  &  Harlem 

R.R.  Co.  518 

V.  The  Railroads  442 

V.  Woodbridge  402 

Thompson's  Case  92 

Thomson  v.  Ketcham  65 

V.  Redman  245 

Thorley  v.  Lord  Kerry             .  450 

Thorndike  v.  City  of  Boston  90,  92 

V.  Stone  415,  416 

Thorne  v.  Watkins  83 

Thornton  v.  Appleton  227 

V.  Bank  of  Washington    411 

V.  Carson  206,  210 

V.  Charles  294 

V.  Kempster  294 

I'.  Meux  294 

V.  Place  37 

V.  Thompson  486 

Thorold  v.  Smith  127 

Tliorp  r.  Thorp  41,43 

Thorpe  I'.  Cooper  211 


Page 

Thrall  V.  Newell  18 

Thrasher  v.  Evcrhart  100 

V.  Haynes  202 

V.  Tuttle  127 

Throckmorton  v.  Tracy  18,  20 

Thrustout  V.  Craster  242 

V.  Grey  495 

Thurher  v.  Blackburne  120|^ 

Thurlow  V.  Massachusetts  539 

Thurston  v.  Blanchard  136 

V.  Fisher  378 

V.  Martin  442 

V.  Percival  263 

Tiber  v.  Parsons  500 

Ticonic  Bank  v.  Jones  411 

Tiernan  t'.  Napier  161,165 

Tileston  v.  Newell  44 

Tilcy  V.  Courtier  133 

Tillinghast  v.  Nourse  361 

Tillotson  V.  Cheetham  449 

Tillou  i\  Britton  154 

V.  Clinton  Mut.  F.  Ins.  Co.   229 

Timmis  r.  Gibbins  134 

Timson  v.  Cooke  144 

Tinney  v.  Ashley  189 

Tippets  V.  Heane  355 

V.  Walker  315 

Tipping  V.  Smith  204 

Tisdale  v.  Harris  331 

Tisloe  V.  Graeter  67 

Titus  V.  Ilobart  102 

V.  Perkins  204 

Todd  V.  Baylor  497 

V.  Parker  151 

V.  Summers  44 

V.  Todd  353 

Toland  v.  Sprague  368 

Tolbert  v.  Harrison  241 

Toledo  Bank  v.  Bond  511,  512,  514, 527 

Tolen  1'.  Tolen  113,116,117 

Tolley  V.  Greene  319 

Tomkins  v.  Bernet  405 

Tomlin  v.  Mayor,  &c.  of  Fordwich  209 

Tomlinson  v.  Gill  300 

Tompkins  v.  Brown  350,  363 

V.  Corwin  25 

V.  Elliot  42,  44 

Toomer  v.  Dawson  285,  298 

Topliam  V.  Braddick  371 

Torrey  i'.  Grant  397 

Toulmin  v.  Copland  144 

Touro  V.  Cassin  82 

Tovcy  V.  Lindsay  115 

Towers  v.  Barrett  190 

V.  Sir  John  Osborne     333, 335 

Town  of  Pawlet  v.  Clark  51 1 

Towncnd  v.  Drakcford  294 

Townsend  v.  Bush  395 

V.  Inglis  128 

r.  Wells  161,162,163 

Towson  V.  Havre-de-Graco  Bank      157 

Tracy  v.  Heed  231 


INDEX   TO   CASES   CITED. 


li 


Page 
Tracy  v.  Strong  153 

Trammell  v.  Harrcll  245 

Traquair  v.  Kcilinger  208 

Trask  v.  Patterson  40 

Tread  well  v.  Moore  141 

Treasurers  v.  Bates  231 

Trcgoning  v.  Attenborough  404 

Trcmain  v.  Liming  169 

Trcnehard  v.  Hoskins  13 

Trenton  Bank  v.  Wallace  232,  234 

Treport's  Case  16 

Triggs  V.  Ncwnham  342 

Trimbey  v.  Viguier  82 

Trippe  v.  Frazier  70 

Trott  V.  Wood  50,  53,  54 

Trotter  v.  Curtis  411 

Trop  V.  Smith  372,  378 

Trowel  v.  Castle  228 

Troy  Iron  &  Nail  Factory  v.  Corn- 
ing 60 
True  I'.  Eanney                                  108 
Trueman  v.  Fenton                            343 
V.  Loder                         52,  291 
Truett  V.  Wainwright                          228 
Trustees,  &c.  v.  Kendrick                   136 
of  Schools  r.  Tatman          511 
Vincennes  University  v. 
Indiana                      514 
Tryon  v.  Whitmarsh                           272 
Tuckahoc  Canal  Co.  v.  Tuckahoe  R. 


R.  Co. 

518 

Tucker  v.  Tucker 

250 

251 

V.  Wilamonicz 

395 

Tuckerman  v.  Newhall 

220 

Tuckwell  r.  Lambert 

268 

Tudor  V.  Terrel 

62 

Tufts  V.  Adams 

503 

V.  Tufts 

297 

Turns  v.  Bird 

219 

Tupper  V.  Powell 

404 

Turnbull  v.  Strohecker 

248 

Turner  v.  Browne 

199 

V.  Calvert 

395 

V.  Diaper 

247 

V.  Hiibbell 

309 

V.  Hulme 

398 

V.  Sattcrlee 

240 

V.  Swainson 

201 

207 

V.  Turner 

208 

Turney  v.  Dodwell 

354 

Turnpike  Co.  v.  Commonwealth 

193 

V.  Phillips 

514 

Turpin  i\  Povall 

392 

404 

Tuthill  V.  Davis 

397 

Tuttlc  V.  Clark    ' 

422 

V.  Swett 

316 

V.  Tuttle 

199 

Twopenny  v-  Young 

222 

Tyler  v.  Bland 

157 

V.  McCardle 

172 

Tyrer  17.  King 

505 

Tyson  v.  Rickard 

385 

387 

u. 

Uhdc  V.  Walters 

Ulrich  V.  Berger 

Underhill  v.  Van  Cortlandt 

Ungcr  V.  Boas 

Union  Bank  v.  Kindrick 

United  States  v.  Arendendo 
V.  Bradbury 
V.  Buchanan 
V.  Crosby 
V.  Kirkpatrick 
V.  McLemore 
V.  Wardwell 

United  States  Bank  v.  Bank 
Georgia 

Unwin  v.  Wolseley 

Upson  V.  Austin 

Utica  Ins.  Co.  v.  Bloodgood 
V.  Cadwell 
V.  Kip 
V.  Scott 
V.  Tillman 


Vail  V.  Rice 

Valentine  v.  Valentine 

Vallancc  v.  Dewar 

Vallee  v.  Dumergue 

Valley  Bank  v.  Stribling 

Van  Alen  v.  Rogers 
Arsdale  v.  Howard 
Bensscooter  v.  Lawson 
Ilagen  v.  Van  Rensselaer 
Keuren  v.  Parraelee    362, 
Ostrand  v.  Reed 
Ness  V.  Pacard 
Reimsdyk  v.  Kane  82, 100, 

Rensselaer  v.  Jewett 
V.  Jones 

Rhyn  v.  Vincent 

Valkenburgh  v.  Roun 

Wart  V.  Woolley 
Vanblect  v.  Adair 
Vance  v.  Journe 
V.  Monroe 
Vandenburgh  v.  Swax 
Vanderbilt  v.  Adams 
Vanderslice  v.  Newton 
Vandervoort  v.  Smith 
Vane  v.  Cobbold 
Vanhooser  v.  Logan 
Vanlandingham  v.  Huston 
Vansandan  v.  Browne 
Vanvivee  v.  Vanvivee 
Varick  v.  Crane 
Varner  v.  Nobleborough 
Varncy  v.  Brewster 
Vaughan  v.  Davies 


of 


Page 

50 

247 

215 

261 

147 

516 

144 

54 

83 

144 

147 

144 


134 
11 
400 
253,411 
253 
253 
253 
407 


48,  55 
201 

50 
118 
386 
494 
272,  273 
147 

15 

363,  364 

136 

50 
102,103. 
536 
381 
381 
369 

66 
467 
492 
481 
143 
458 
538 
453 

61 
267 
163 
377 
373 
211 
393,  394 
136 
203 
242 


lii 


INDEX  TO  CASES  CITED. 


Page 

Page 

Vaughan  v.  Hancock 

298 

,  314 

Waller  v.  Hendon 

294 

Veazic  v.  AVilliams 

279 

V.  Hitchcock 

495 

Veazy  v.  Harmony 

158 

V.  King 

207 

Vedder  v.  Alkenbrack 

534 

V.  Lacy 

143 

146, 349 

V.  Vedder 

197 

Wallis  V.  Day 

256 

Venable  v.  Thompson 

69 

V.  Mease 

446 

Ventris  v.  Shaw 

346 

V.  Wallis 

16 

Vermont  Central  R.  R.  Co.  v.  Estate 

Walmcsleyy.  Cooper 

222 

of  Hills 

61 

Walpole  V.  Cholmondely 

3 

Vernon  v.  Alsop 

26 

Walsh  V.  Durkin 

232,  233 

V.  Keys 

268 

V.  Farrand 

536 

Vicars  v.  Wilcocks 

457 

,458 

V.  Gilmor 

205 

Vickery  v.  Welch 

257 

Walter  v.  Haynes 

133 

Vidal  V.  Thompson 

83 

Walters  v.  Short 

229 

Vielie  v.  Osgood 

289 

Walton  w.  Craig 

490 

Villers  v.  Beaumont 

67 

Walworth  i'.  Pool 

469 

Vincent  r.  Germond 

321 

Wankford  v.  Fotherley 

311 

Violett  V.  Patton 

297 

V.  Wankford 

222 

Vischer  v.  Yates 

262 

Warburton  v.  Aken 

279 

Von  Hemert  v.  Porter 

430 

Ward  V.  Byrne 

256 

Voorhees  v.  Earl 

45e 

,486 

V.  Evans 

128 

Vose  V.  Philbrook 

245 

V.  Johnson 

220 

Vyse  V.  Wakefield 

182 

V.  Uncorn 
V.  Weeks 

211 

457 

Warfield's  Adm's  v.  Boswell 

386 

W. 

Waring  v.  CunlifFe 
V.  Favenck 

428,  430 
249 

Waddington  v.  Bristow 

314 

V.  Smith 

226 

I'.  Oliver 

171 

V.  Smyth 

231 

Wade  V.  Wilson 

401  403 

Warn  v.  Bickford 

245 

Wade's  Case 

153 

,  157 

Warner  v.  Daniels 

277 

281,  282 

Wadleigh  v.  Pillsbury 

234 

V.  The  Peopio 

512 

V.  Veazie 

232 

Warren  v.  Crabtreo 

391,397 

Wagner  v.  Holburmer 

446 

V.  Flagg 

124 

Wagonseller  v.  Synder 

262 

V.  Green 

202 

Wain  V.  Warlters 

295,  296 

297 

V.  Laytoa 

229 

Wainman  v.  Kyman 

356 

V.  Leland 

314 

Wainwright  v.  Webster 

134 

V.  Mains 

133 

157,  172 

Wainstell  v.  Atkinson 

150 

V.  Merrifield 

13 

Waite  V.  Delesdernier 

127 

V.  Skinner 

198 

Wake  V.  Tinkler 

250 

V.  Wells 

244,  245 

Wakefield  V.  Smart 

378 

V.  Wheeler 

65,  505 

V.  Lithgon 

133 

Warrender  v.  Warrender 

83,  94;  108 

Walden  v.  Louisiana  Ins. 

Co. 

274 

Warwick  v.  Bruce 

314 

V.  Sherburne 

381 

Warwicke  v.  Noakes 

132 

Waldo  V.  Long 

503 

Washburn  v.  Gould 

13 

Waldon  v.  Long 

442 

Washington  Bank  t;.  Brown 

495 

Wales  V.  Webb 

397 

Bridge  Co.  v 

.  The 

Walker  v.  Bank  of  Wash 

ngton 

397 

State 

515 

V.  Campbell 

349 

Washington  &  Baltimore 

Turnpike 

V.  Constable 

292 

Co.  V.  Baltimore  &  Ohio 

R.  R. 

V.  Leighton 

244 

245 

Co. 

518 

V.  Merrill 

202 

Wason  V.  Rowe 

5 

V.  Moore 

503,  504 

505 

Waterbury  v.  Graham 

297 

V.  Nussey 

332 

Watcrer  v.  Freeman 

492 

r.  Schuyler 

497 

Waterman  v.  Johnson 

62,  70 

V.  Smith 

450, 

452 

V.  Meigs 

294,  336 

V.  AVitler 

120 

Waters  v.  Bridges 

202 

Wall  V.  Williamson 

107, 

109 

V.  The  Earl  of  Thanet  371,  372 

Wallace  v.  Agry 

136 

r.  Tomkins 

356,  357 

V.  Clark 

479 

V.  Towers 

459 

V.  Talbot 

500 

Watkins  «;.  Hill 

136 

INDEX  TO   CASES   CITED. 


Ilii 


Page 

Watkins  v.  Perkins  302 

V.  Stevens  349,  365 

"Watkinson  v.  Inglesby  130,  131 

V.  Laughton  468 

Watson  V.  A.  N.  &  B.  Railway        458 

V.  Bourne  536 

V.  Hensel  245 

V.  Hetherington  151 

V.  Lyle  368,  369 

t;.  McLorcn  297 

V.  Mercer  534 

V.  Moore  446 

V.  Poulson  271 

V.  Watson  204,  497 

Watt  V.  Porter  472 

Watts  V.  Freser  455 

Waugh  V.  Cope  356 

Wayland  v.  Mosely  67 

Weatherford  v.  Fishback  271,  277 

Weatherhead  v.  Boyers  386 

Weathcrhead's  Lessee  v.  Basker- 

ville  70 

Weatherred  v.  Mays  242 

Weatherstone  v.  Hawkins  443 

Weaver  v.  Childress  43 

V.  Sessions  191 

Webb  t'.  Fairmaner  176 

V.  Ingram  211 

V.  Plummer  50,  59 

t;.  Portland  Mannf.  Co.   492,  493 

Webber  V.  Ives  217 

V.  Tivill  368 

Webb's  Case  70 

Webster  v.  Ela  294 

V.  Enfield  35 

V.  Wyser  200 

Weed  V.  Ellis  208 

Weeks  v.  Burton  272 

V.  Hull  177 

Weisser  v.  Maitland  29 

Weiting  v.  Nissley  499 

Weldv.  Hadley  165 

Welford  v.  Beazely  285,  289 

V.  Liddel  369 

Weller  v.  Baker  493 

Welles  V.  Cowles  315 

Wellman  v.  Southard  351 

Wells  V.  Abernethy  480,  481 

V.  Cooke  219 

V.  Horton  318 

V.  Porter  395 

V.  Ragland  374 

V.  Tregusan  26 

V.  Watling  493 

V.  Wright  26 

Weman  v.  The  Mohawk  Insurance 

Co.  371 

Wentworth  v.  Bullen  195 

West  V.  Pritchard  480 

V.  Wentworth  472,  473,  481 

West  Branch  Bank  v.  Morehead       142 


Page 
West  Feliciana  E.  R.  Co.  v.  Stoc- 

kctt  539 

West  River  Bridge  Co.  v.  Dix         518, 

519,520,  521,  522,  524 

Wcstbnry  v.  Aberdcin  267 

Westfall  V.  Parsons  303 

Wcsterman  v.  Means  1 72 

Western  v.  Russell  298 

Westwood  V.  Bell  249 

Wetherell  v.  Jones  252 

Whallon  v.  KaufFman  14 

Wharton  v.  King  206,  208,  210 

Wheatley  v.  Williams  370 

Wheaton  v.  Hibbard  405 

Wheeler  v.  Collier  294 

V.  Kraggs  133 

V.  Knaggs  155,  1^7 

t;.  Raymond  119,251 

V.  Russell  252,  253 

V.  Spencer  139,  262 

V.  Webster  377 

V.  Wheeler  130 

Wheelock  v.  Doolittle  361 

V.  Freeman  227 

Wheelwright  v.  Beers  468 

Whillington  v.  Polk  513 

Whipple  V.  Chamberlain  Mannf. 

Co.  493 
V.  Cumberland  Mannf. 

Co.  442 

V.  Stevens  353, 363 

V.  Walpolo  449 

V.  Whipple  451 

Whitaker  v.  Cone  264 

Whitcomb  v.  Preston  204 

V.  Williams  136 

V.  Whiting  363 

Whitfield  V.  Collingwood  230 

White  t;.  Bailey  375 

V.  Bradshaw  62 

V.  Chapman  468 

w.  Dinglcy  219,220 

V.  Hall  361 

V.  Hancock  26 

V.  Holford 

V.  Jordan  199 
V.  Mann  185 
V.  Moseley  461,  498 
I'.  Perley  162 
V.  Proctor  292 
V.  The  Franklin  Bank   252,  253 
V.  Webb  477 
v.  White           116,417,530,534 
V.  Whitney  500,  502 
V.  Wright  389,  390 
White  River  Turnpike  v.  Vt.  Cen- 
tral R.  R.  Co.  518,  522 
Whistler  v.  Hicks  503 
Whiston  V.  Stodder  82,  98 
Whitehead  v.  Cade  243 
u.  Lord  373 


Uv 


in£>ex  to  cases  cited. 


Page 

•  P 

age 

Whitehead  v.  Walker 

372 

Williams  v.  Gilchrist 

248 

Whitchurst  v.  Boyd 

15 

i).  Griffith     141,346, 

349, 

353 

Whiteside  v.  Jennings 

505 

V.  Gridley 

357 

Whitlocke  v.  Walton 

378 

V.  Hance  &  Mott 

413 

Wliitmarsli  v.  Walker 

312,315 

V.  Healey 

45 

Whitmorc  r.  Coats 

484 

V.  Hide 

184 

Whitney  v.  Allaire 

278 

V.  Hill 

453 

i\  IJigclow 

365 

V.  Houghtaling 

147 

?;.  Cochran 

337 

V.  Jones 

103, 

379 

V.  Hitchcock 

450 

V.  Leper                306 

308 

309 

V.  Spencer 

188 

V.  Lloyd 

184 

Whittaker  v.  Mason 

49 

V.  IMorris 

46,47 

Whittemore  v.  Adhms 

102 

V.  Mostym 

492 

V.  Cutter 

453 

V.  Gates 

105 

109 

r.  Gihbs 

331 

V.  Ocean  Ins.  Co. 

251 

Wliittcn  V.  Fuller 

481 

V.  Planters'  Bank 

515 

Whittington  r.  Farmers'  Banh 

24G 

V.  Sherman 

381 

Whitworth  ;;.  Adams 

423 

V.  Rawlinson 

144 

145 

Wickcns  v.  Evans 

256 

V.  Storrs 

382 

Wicker  v.  Norris 

177 

V.  Walsby 

129 

Wickes  V.  Caulk 

229 

V.  Whiting 

91 

Wickham  v.  Hawker 

23 

V.  Williams 

209 

385 

Wicks  V.  Gogcrley 

396 

Williams's  Case 

202 

Wiggin  V.  CoiEn 

443,  452 

Williamson  v.  Henley 

262 

V.  Peters 

177 

Willings  V.  Consequa 

82 

Wiggles  worth  t\  Dallison 

50,  60 

Willion 

r.  Berkley 

18 

Wight  V.  Shuck 

393 

Willis 

;.  Ncwham 

357 

,  358 

Wightman  v.  Wightman 

107 

Willou, 

;hby  V.  Comstock 

386 

Wilcox  V.  Howland 

428,  429 

Wills  V 

.  C  owner 

83 

V.  Hunt 

82,  100 

Wilraot  V.  Hurd 

245 

V.  Plummcr 

Wilmott  V.  Smith 

127 

,  151 

V.  Wilcox 

208 

Wilson 

V.  Alexander 

134 

r.  Wood 

50 

V.  Appleton 

376 

Wild  V.  Williams 

129 

V.  Beddard 

291 

Wilde  V.  Armsby 

229 

V.  Broom 

484 

Wiley  V.  Moor 

230 

V.  Butler 

268 

V.  Shoeraak 

163 

V.  Calvert 

353 

Wilhite  V.  Roberts 

263 

V.  Codman 

249 

Wilkes  V.  Ferris 

323 

V.  Forbes 

500 

V.  Lion 

495 

V.  George 

490 

Wilkie  V.  Kooscvclt 

394 

V.  Hardesty 

404 

,  534 

Wilkinson  v.  Adam 

13 

V.  Henderson 

229 

V.  Byers 

199 

V.  Hirst 

144 

V  Gaston 

177 

V.  Little 

480 

,481 

V.  Godefroy 

140 

V.  Martin 

316 

V.  Lcland 

510 

r.  Oatman 

497 

Wilks  V.  Smith 

41 

V.  Robertson 

62 

Willard  v.  Fox 

242 

V.  Spencer 

505 

V.  Ilceder 

390 

V.  Wilson 

275 

V.  Rice 

474 

V.  Y.  N.  &  B.  R.  Co. 

459 

V.  Spcrry 

132 

Wilt  V. 

Vickers 

442 

V.  Twitchell 

498 

Wilton 

V.  Falmouth 

91 

Willet  V.  Atterton 

344 

Winans  v.  Huston 

220 

Williams  v.  Archer 

481 

Winch 

V.  Sanders 

210 

r.  Barton 

456 

nut  tarn,  v.  Fenn 

411 

V.  Crary 

248 

Windham's  Case 

18 

V.  Currie 

452 

Wing  I 

'.  Duma 

396 

V.  Dakin 

437, 439 

Wingate  v.  Smith 

474 

V.  Dormer 

113 

Winsh 

p  V.  Bass 

222 

V.  Field 

506 

Winslow  V.  Dawson 

393 

V.  Gilman 

49,  58 

V.  Patten 

18 

INDEX   TO   CASES   CITED. 


Iv 


•  • 

Page 

Page 

Winsor  v.  Dillaway 

56 

Worthington  v.  Worthington 

503 

Winter  v.  Garlick 

209 

V.  Young 

496 

V.  Jones 

510,  530 

Worthy  v.  Patterson 

486 

V.  Muntoii 

203 

Wren  v.  Pearce 

297 

V.  Perratt 

70 

Wright  V.  Alexander 

385 

V.  White 

203 

V.  Butler 

132 

372 

Winthrop  v.  Carleton 

98 

V.  Cobleigh 

240 

V.  Union  Ins.  Co- 

55 

V.  Dannah 

292 

Witherow  v.  Witherow 

36 

V.  Dcklyne 

235 

Withers  v.  Atkinson 

231 

V.  Goddard 

150 

t'.  Lyss 

323 

V.  Laing 

141 

401 

V.  Reynolds 

30,34 

V.  Reed 

133 

Witherspoon  v.  Anderson 

500 

V.  Smith 

206 

211 

Wittersheim  v.  Lady  Carlisle 

370 

V.  Smyth 

246 

Woert  V.  Jenkins 

449 

V.  Wright 

203 

Wolfe  V.  Frost 

315 

V.  Wheeler 

397 

V.  Whiteman 

370 

Wrightup  V.  Chamberlain 

4S9 

Wolfersberger  v.  Bucher 

243 

Wrigley's  Case 

92 

Wohlenberg  v.  Lageman 

215 

Wrotesley  v.  Adams 

13 

Wood  V.  Adcock 

202 

Wroth  V.  Johnson 

262 

V.  Akers 

244 

Wyatt  V.  Hodson 

360 

,363 

V.  Benson 

299 

Wycoff  V.  Longhead 

422 

V.  Bodwell 

136 

Wylic  V.  Sraitherman 

449 

,  452 

V.  Earl 

205 

Wyman  v.  Ballard 

503 

V.  Griffith 

207 

V.  Gray 

297 

V.  Grimwood 

402,  403 

V.  Smith 

308 

V.  Hitchcock 

156 

V.  Winslow 

158 

V.  Leadbitter 

23 

Wynn  v.  Cox 

61 

V.  Lee 

73 

Wynne  v.  Jackson 

82 

V.  Mauley 

46 

V.  McCann 

260 

Y. 

V.  Morewood 

V.  Perry 

67 

Yandes  v.  Lefavour 

127 

V.  Robbins 

382 

Yate  V.  Willan 

150 

V.  Savage 

310 

Yates  V.  Foot 

262 

V.  Wood 

53,  54 

V.  Freckleton 

126 

127 

V.  Wylds 

356 

V.  Pym 

59 

Woodbridge  v.  Allen 

349 

V.  Van  Rensselaer 

241 

V.  Wright 

102 

Yea  V.  Fouraker 

342 

Woodend  v.  Paulspury 

94 

Youde  V.  Jones 

26 

Woodfin  V.  Hooper 

532 

Young  V.  Adams 

134 

WoodhuU  V.  Wagner 

536 

V.  Berkley 

395 

Woodruff  t'.  Dobbins 

194 

V.  Black 

236 

V.  Richardson 

452 

V.  Covell 

272 

V.  Trafnall 

530 

V.  Hall 

270 

271 

Woods  V.  Carlisle 

244 

V.  Mackall 

374 

V.  Dennett 

256 

V.  Miller 

385 

V.  Russell 

31 

V.  Reuben 

205 

Woodward  v.  Darcy 

222 

V.  Scott 

404 

V.  Secley 

23, 315 

V.  Timmins 

256 

V.  Thacher 

486 

V.  Turner 

442 

Woolbridge  v.  Wilkin  s 

497 

V.  Wright 

394 

Wooten  V.  Read 

37 

Younger  v.  Givens 

482 

483 

Worral  v.  Akworth 

209 

V.  Munn 

291,294 

Z. 

Worthington  v.  Grimsditch 

357 

Zcnt  V.  Heart 

361 

V.  Wigley 

198 

Zinn  V.  Rowley 

165 

PART   II. 


THE    LAW    OF    CONTRACTS 


CONSIDERED   IN   EEFEKENCE    TO   THE 


OPERATION  OF  LAW  UPON  THEM. 


VOL.  II. 


THE  LAW  OF  CONTRACTS. 


CHAPTER  I. 


CONSTRUCTION  AND   INTERPRETATION   OF   CONTRACTS,  (o) 

Sect.  I.  —  General  Purpose  and  Principles  of  Construction. 

The  importance  of  a  just  and  rational  construction  of 
every  contract  and  every  instrument,  is  obvious.  But  the 
importance  of  having  this  construction  regulated  by  law, 


(a)  The  terms  "  interpretation  "  and 
"  construction "  are  used  interchange- 
ably by  writers  upon  the  law.  A  dis- 
tinction has  been  taken  between  them 
by  Dr.  Lieber,  in  his  work  upon  "  Le- 
gal and  Political  Hermeneutics."  In- 
terpretation as  defined  by  him  is  "  the 
art  of  finding  out  the  true  sense  of  any 
form  of  words  ;  that  is,  the  sense  which 
their  author  intended ;  and  of  enabling 
others  to  derive  from  them  the  same 
idea  which  the  author  intended  to  con- 
vey." On  the  other  hand,  "  construc- 
tion is  the  drawing  of  conclusions  re- 
specting subjects  that  lie  beyond  the 
direct  expression  of  the  text  —  conclu- 
sions which  are  in  the  spirit,  though 
not  within  the  letter  of  the  text."  See 
Legal  and  Political  Hermeneutics,  ch. 
1.  sec.  8 ;  ch.  3,  sec.  2  ;  ch.  4  and  ch.  5. 
Interpretation  properly  precedes  con- 
struction, but  it  does  not  go  beyond  the 
written  text.  Construction  takes  place 
where  texts  to  be  interpreted  and  con- 
strued are  to  be  reconciled  with  the 
rules  of  law,  or  with  compacts  or  con- 


stitutions of  superior  authority,  or  where 
we  reason  from  the  aim  or  object  of  an 
instrument,  or  determine  its  application 
to  cases  unforeseen  and  unprovided  for. 
The  doctrine  of  cy  pres  belongs  to  con- 
struction. Rules  of  interpretation  and 
construction  should  also  be  carefully 
distinguished  from  rules  of  law.  See 
the  able  note  of  Mr.  Preston,  in  his  edi- 
tion of  Sheppard's  Touchstone,  p.  88  ; 
also  per  Parke  and  Itolfe,  BB.,  in 
Keightley  v.  "Watson,  3  '  Exch.  716, 
quoted  a?ife,  vol.  i.,  pp.  18, 19.  It  is  to  be 
observed  also,  "  that  when  a  general 
principle  for  the  construction  of  an  in- 
strument is  laid  down,  the  Court  will 
not  be  restrained  from  making  their  own 
application  of  that  principle,  because 
there  are  cases  in  which  it  may  have 
been  applied  in  a  different  manner." 
Per  Lord  Eldon,  C.  J.,  in  Browning  v. 
AVright,  2  Bos.  &  Pul.  24.  And  see,  to 
the  same  effect,  the  remarks  of  Lord 
Kenyon,  in  Walpole  v.  Cholmondely,  7 
T.  n.  148. 


4  THE   LAW   OF   CONTRACTS.  [PART  II. 

guided  always  by  distinct  principles,  and  in  this  way  made 
uniform  in  practice,  may  not  be  so  obvious,  although  we 
think  it  as  certain  and  as  great.  If  any  one  contract  is  pro- 
perly construed,  justice  is  done  to  the  parties  directly  inte- 
rested therein.  But  the  rectitude,  consistency,  and  uniform- 
ity of  all  construction  enables  all  parties  to  do  justice  to 
themselves.  For  then  all  parties,  before  they  enter  into  con- 
tracts, or  make  or  accept  instruments,  may  know  the  force 
and  effect  of  the  words  they  employ,  of  the  precautions  they 
use,  and  of  the  provisions  which  they  make  in  their  own  be- 
half, or  permit  to  be  made  by  other  parties. 

It  is  obvious  that  this  consistency  and  uniformity  of  con- 
struction can  exist  only  so  far  as  construction  is  governed  by 
fixed  principles,  or,  in  other  words,  is  matter  of  law.  And 
hence  arises  the  very  first  rule ;  which  is,  that  what  a  con- 
tract means  is  a  question  of  law.  It  is  the  court,  therefore, 
that  determines  the  construction  of  a  contract.  They  do  not 
state  the  rules  and  principles  of  law  by  which  the  jury  are  to 
be  bound  in  construing  the  language  which  the  parties  have 
used,  and  then  direct  the  jury  to  apply  them  at  their  discre- 
tion to  the  question  of  construction  ;  nor  do  they  refer  to 
these  rules  unless  they  think  proper  to  do  so  for  the  purpose 
of  illustrating  and  explaining  their  own  decision.  But  they 
give  to  the  jury,  as  matter  of  law,  what  the  legal  construc- 
tion of  the  contract  is,  and  this  the  jury  are  bound  absolutely 
to  take,  (b) 

(b)  "The  construction  of  till  written  exceptions,  of  redress  in  a  Court  of  Er- 

instrumcnts  belongs  to  the  court  alone,  ror,  but  a  misconstruction  by  the  jury 

whose  duty  it  is  to  construe  all  such  in-  cannot  be  set  right  at  all  efl'cctually." 

struments,  as  soon  as  the  true  meaning  Per  Parke,  B.,  in  Neilson  v.  Harford,  8 

of  the  words  in  which  they  arc  couched,  M.  &  W.  806,  823.  In  Hutchison  v.  Bow- 

and  the  surrounding   circumstances,  if  ker,  5  M.  &  W.  535,  an  offer  had  been 

any,  have  been  ascertained  as  fticts  by  made   by  letter  to   sell   a   quantity  of 

the  jury  ;  and  it  is  the  duty  of  the  jury  "  good   barley."      The   letter   in  reply, 

to  take  the  construction  from  the  court  after  stating  the  offer,  contained  the  fol- 

either  absolutely,  if  there  be  no  words  lowing,  —  "of  which  offer   we  accept, 

to   be   construed   as   words   of  art,  or  expecting  you  will  give  us  Jinc  barley 

phrases  used  in  commerce,  and  no  sur-  and   good  weight."     It  was   held  that 

rounding   circumstances   to    be    ascer-  although  the  jury  might  find  the  mer- 

tained  ;    or   conditionally,   when    those  cantile  meanings  of  "good,"  and  "  fine," 

words  or  circumstances  are  necessarily  as  applied  to  barley,  yet  they  could  not 

referred  to  them.     Unless  this  were  so,  go  further,  and  find  that  the  parties  did 

there  would  be  no  certainty  in  the  law ;  not  understand  each  other.     The  ques- 

for  a  misconstru(!tion  by  the  court  is  tion  whether  there  was  a  sufficient  ac- 

the  proper  subject,  by  means  of  a  bill  of  ceptancc  Avas  a  question  to  be  deter- 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.  5 

An  apparent  exception  occurs  not  unfrequently,  where  un- 
usual, or  technical,  or  official  words  are  used,  and  their 
meaning  is  to  be  gathered  from  experts,  or  fronri  those  ac- 
quainted with  the  particular  art  to  which  these  words  refer, 
or  from  authoritative  definitions.  The  evidence  on  this 
point  may  be  conflicting;  and  then  it  presents  a  question 
for  the  jury.  But  the  question  is  rather  analogous  to  that 
presented  by  words  obscurely  written  or  half  erased,  and 
which  may  be  read  in  more  than  one  way.  In  all  such 
cases,  it  is  a  question  of  fact  for  the  jury,  what  is  the  word 
used,  or  what  is  its  specific  meaning  in  this  contract ;  and  it 
is  matter  of  law  what  effect  this  word  used  with  this  mean- 
ing has  upon  the  construction  of  the  contract,  (c) 


mined  by  the  court,  upon  a  proper  con- 
struction of  the  letters.  And  Parke,  B., 
said  :  —  "  The  law  I  take  to  be  this, — 
that  it  is  the  duty  of  the  court  to  con- 
strue all  written  instruments  ;  if  there 
are  peculiar  expressions  used  in  it, 
which  have,  in  particular  places  or 
trades,  a  known  meaning  attached  to 
them,  it  is  for  the  jury  to  say  what 
the  meaning  of  these  expressions  was, 
but  for  the  court  to  decide  what  the 
meaning  of  the  contract  was.  It  was 
right,  therefore,  to  leave  it  to  the  jury 
to  say  whether  there  was  a  peculiar 
meaning  attached  to  the  word  "yi/ie" 
in  the  corn  market;  and  the  jury  having 
found  what  it  was,  the  question,  whe- 
ther there  was  a  complete  acceptance 
by  the  written  documents,  is  a  question 
for  the  judge"  See  Perth  Amboy  Man. 
Co  V-  Condit,  1  N.  Jer.  659  ;  Rogers  v. 
Colt,  Id.  704  ;  Brown  v.  Hatton,  9  Ired. 
319;  Wason  v  Rowe,  16  Verm.  525; 
Eaton  V.  Smith,  20  Pick.  150;  Hitchin 
V.  Groom,  5  C.  B.  515;  Morrell  v.  Frith, 
3  M.  &  W.  402  ;  Rapp  r.  Rapp,  6 
Penn.  St.  45.  The  case  of  Lloyd  v. 
Maund,  2  T.  R.  760,  seems  contra,  but 
that  case  was  substantially  overruled  in 
Morrell  v.  Frith,  3  M.  &  W.  402.  "  If 
I  am  called  on  to  give  an  opinion," 
said  Parke,  B.,  "I  think  the  case  of 
Lloyd  V.  Maund  is  not  law." —  Where 
the  evidence  of  a  contract  consists  in 
part  of  written  evidence,  and  in  part  of 
oral  communications,  or  otlier  unwrit- 
ten evidence,  it  is  left  to  the  jury  to 
determine  upon  the  whole  evidence 
what  the  contract  is.  Edwards  v.  Gold- 
1  * 


smith,  16  Penn.  St.  43;  Bomeisler  v. 
Uobson,  5  Whart.  398 ;  Morrell  v. 
Frith,  3  M.  &  W.  404,  per  Lord  Abin- 
ger.  — In  the  case  of  libel,  the  meaning 
of  the  document  forms  part  of  the  in- 
tention of  the  parties,  and  as  such  in- 
tention is  a  question  for  the  jury,  the 
document  is  submitted  to  them,  the 
judge  giving  the  legal  definition  of  the 
offence.  Parmiter  v.  Coupland,  6  M. 
&  W.  108  ;  per  Parker,  C.  J.,  in  Pierce 
V.  The  State,  13  N.  H.  536,  562  :  per 
Lord  Ahinger,  in  Morrell  v.  Frith,  3  M. 
&  W.  402.  —  So  on  a  prosecution  for 
sending  a  threatening  letter,  the  jury 
will,  upon  examination  of  the  paper,  de- 
cide whether  it  contains  a  menace.  Rex 
V.  Girdwood,  2  East,  P.  C.  1120,  1 
Leach's  Ci'own  Cases,  169. 

(c)  "  When  a  new  and  unusual  word 
is  used  in  a  contract,  or  when  a  word  is 
used  in  a  technical  or  peculiar  sense, 
as  applicable  to  any  trade,  or  branch  of 
business,  or  to  any  particular  class  of 
people,  it  is  proper  to  receive  evidence 
of  usage,  to  explain  and  illustrate  it, 
and  that  evidence  is  to  be  considered  by 
the  jury;  and  the  province  of  the  court 
will  then  be,  to  instruct  the  jury  what 
will  be  the  legal  effect  of  tlie  contract 
or  instrument,  as  they  shall  find  the 
meaning  of  the  word,  modified  or  ex- 
plained by  the  usage.  But  when  no 
new  word  is  used,  or  when  an  old  word, 
having  an  established  place  in  the  lan- 
guage, is  not  apparently  used  in  anv 
new,  technical,  or  peculiar  sense,  it  is 
the  province  of  the  court  to  put  a  con- 
struction upon  the  written  contracts  and 


6  THE   LAW   OF   CONTRACTS.  [PART  II. 

The  principles  of  construction  are  much  the  same  at  law 
and  in  equity,  (d)  Indeed  these  principles  are  of  necessity 
very  similar,  whether  applied  to  simple  contracts,  to  deeds, 
or  to  statutes.  There  are  differences,  but  in  all  these  cases 
the  end  is  the  same  ;  and  that  is  the  discovery  of  the  true 
meaning  of  the  words  used,  (e) 


SECTION  II. 

OF   THE   EFFECT   OF   INTENTION. 

The  first  point  is,  to  ascertain  what  the  parties  themselves 
meant  and  understood.  But  however  important  this  in- 
quiry may  be,  it  is  often  insufficient  to  decide  the  whole 
question.  The  rule  of  law  is  not  that  the  court  will  always 
construe  a  contract  to  mean  that  which  the  parties  to  it 
meant ;  but  rather  that  the  court  will  give  to  the  contract 
the  construction  which  will  bring  it  as  near  to  the  actual 
meaning  of  the  parties  as  the  words  they  saw  fit  to  employ, 
when  properly  construed,  and  the  rules  of  law,  will  permit. 
In  other  words,  courts  cannot  adopt  a  construction  of  any 
legal  instrument  which  shall  do  violence  to  the  rules  of  lan- 
guage,  or  to  the  rules   of  law.  (/)     Words  must   not  be 


agreements  of  parties,  according  to  the  Robertson  v.  French,  4  East,  130,  135; 

establislied  use  of  language,  as  applied  per  Tindal,  C.  J.,  in,  Hargrave  ?'.  Smee, 

to  the  subject-matter,  and  modified  by  3  M.  &  P.  581  ;   per  S/iaw,   C  J.,  in 

the   whole  instrument,  or   by  existing  Kane  v.  Hood,  13  Pick.  282. 

circumstances."     Per   Shau\    C   J.,  in  (/")"  Whenever,"  says  ll'7//es,  C.  J., 

Eaton   V.    Smith,  20  Pick.   150.     And  in  Parkhurst  i-.  Smith,  Willes,  332,  "it 

see  preceding  note.  is  necessary  to  give  an  0|)inion  upon 

{(I)  3  Bl.  Com.  434 ;  1  Fonb.  on  Eq.  tlie  doubtful  words  of  a  deed,  the  first 

145.  n.  {b) ;  llotham  v.  East  India  Co.  thing  we  ought  to  inquire  into  is,  what 

1  Dougl.  277  ;  Doe  d.  Long  v.  Laming,  was  the  intention  of  the  parties.     If  tho 

2  Burr.   1108;  Eaton  v.  Lyon,  3  Ves.  intent  be  as  doubtful  as  the  words,  it 
692  ;  Ball  v.  Storie,  1  Sim.  &  Stu.  210.  will  be  of  no  assistance  at  all.     But  if 

(e)  "  The   same   sense   is   to   be  ])ut  the  intent  of  the  parties  be  plain  and 

upon  the  words  of  a  contract,  in  an  in-  clear,  wc  ouglit  if  possible  to  put  such 

strument  under  seal,  as  would   be  put  a  construction  on  the  doubtful  words  of 

upon  tlie  same  words  in  any  instrument  a  deed  as  will  best  answer  tlie  intention 

not  under  seal;  for  the  same  intention  of  the  parties,  and  reject  that  construc- 

raust  he  collected  from  the  same  words  tion  which  manifestly  tends  to  overturn 

of  a  contract  in  writing,  Avhether  with  and  destroy  it.     I  admit  that   though 

or  without  a  seal"     Per  Lord  Ellenbo-  the  intent  of  the   parties    be   never  so 

rouf/Zi,  in  Seddon  i'.  Senate,  13  East,  74;  clear,  it  cannot  take  place  contrary  to 


CII.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.     7 

forced  away  from  their  proper  signification  to  one  entirely 
different,  although  it  rrught  be  obvious  that  the  words  used 
either  through  ignorance  or  inadvertence,  expressed  a  very 
different  meaning  from  that  intended.  Thus,  if  a  contract 
spoke  of  "  horses,"  it  would  not  be  possible  for  a  court  to 
read  this  word  "oxen,"  although  it  might  be  made  certain 
by  extrinsic  evidence  that  it  was  so   intended,  (g-)      So  if 


the  rules  of  law,  nor  can  we  put  words 
in  a  deed  which  arc  not  there,  nor  put 
a  construction  on  the  words  of  a  deed 
directly  contrary  to  the  plain  sense  of 
them.  But  where  the  intent  is  plain 
and  manifest,  and  the  words  doubtful 
and  obscure,  it  is  the  dHty  of  the  judges 
(and  this  is  that  astutia  which  is  so 
much  commended  by  Lord  Hobart,  p. 
277,  in  the  case  of  the  Earl  of  Clan- 
rickard.)  to  endeavor  to  find  out  such  a 
meaning  in  the  words  as  will  best  an- 
swer the  intent  of  the  parties." 

(g)  This  is  a  rule  which  should  be 
constantly  borne  in  mind  in  putting  a 
construction  upon  any  legal  instrument. 
It  is  admirably  expounded  by  Lord 
Chief  Baron  J^yre,  in  the  opinion  deli- 
vered by  him  before  the  House  of  Lords 
in  the  great  case  of  Gibson  v.  Minet,  1 
H.  Bl.  569,  614.  One  of  the  questions 
agitated  in  that  case  was,  whether  a  bill 
of  exchange  drawn,  payable  to  a  ficti- 
tious payee,  and  purporting  to  be  by 
him  indorsed,  could  be  construed  as  a 
bill  payable  to  bearer.  A  majority  of 
the  judges  who  delivered  opinions  ar- 
gued in  favor  of  such  a  construction, 
and  urged,  among  other  arguments,  the 
case  of  deeds  of  conveyance,  which  are 
frequently  made  to  operate  in  a  manner 
different  from  what  the  parties  intended. 
But  the  learned  Chief  Baron  delivered 
a  very  powerful  opinion  against  adopt- 
ing the  construction  in  question.  After 
noticing  the  argument  derived  from 
deeds  of  conveyance,  and  urging  that 
there  was  no  analogy  between  them 
and  bills  of  exchange,  he  continued:  — 
"  But  let  it  be  supposed,  for  the  sake  of 
the  argument,  that  there  may  be  some 
analo_gy  between  deeds  and  bills  of  ex- 
change ;  I  ask  what  are  the  instances  in 
which  construction  and  interpretation 
have  taken  so  great  a  liberty  with 
deeds,  as  to  afford  an  argument  by  ana- 
logy for  construing  in  this  case  a  bill 
drawn  payable  to  order  to  be  a  bill 
drawn   payable    to    bearer.      The    in- 


stances which  had  occurred  to  me,  as 
likely  to  be  insisted  upon,  do  in  my 
apprehension  afford  no  argument  in  fa- 
vor of  this  position.  A  deed  of  feoff- 
ment upon  consideration  without  livery^ 
may  enure  as  a  covenant  to  stand  seised' 
to  the  use  of  the  intended  feofl'ee.  A 
deed  importing  to  be  a  grant  by  two, 
one  having  a  present,  the  other  a  future 
interest,  may  enure  as  the  grant  of  the 
former,  and  the  confirmation  of  the 
latter.  A  feoffment  without  livery  ope- 
rates nothing  as  a  feoffment,  is  in  truth 
no  feoffment,  but  is  a  deed  which  under 
circumstances  may  operate  as  a  cove- 
nant to  stand  seised  to  uses;  why? 
The  feoffor  has  by  the  deed  agreed  to 
transfer  the  seisin  and  his  right  in  the 
subject  to  the  feoffee.  If  the  considera- 
tion is  a  money  consideration,  or  a  con- 
sideration of  blood,  which  is  more  valu- 
able than  money,  the  law  raises  out  of 
the  contract  an  use  in  favor  of  the  intend- 
ed feoffee.  The  seisin  which  remains 
in  the  feoffor,  because  the  deed  is  insuf- 
ficient to  pass  it,  must  remain  in  him, 
bound  by  the  use.  This  is  the  effect  of 
the  feoffor's  own  agreement  plainly  ex- 
pressed upon  the  face  of  this  deed. 
His  agreement  by  his  deed  is  in  law  a 
covenant,  and  by  this  simple  process 
does  his  intended  feoffment  become,  in 
construction  of  law,  his  covenant  to  — 
stand  seised  to  uses.  It  is  a  construe-  " 
tion  put  upon  the  words  of  his  deed, 
which  his  icords  ivill  bear.  So  a  deed 
importing  a  grant  of  an  interest  by  two, 
one  entitled  in  possession,  the  other  in 
reversion,  is,  in  consideration  of  law,  the 
grant  of  the  first  and  the  confirmation 
of  the'  second;  why'?  The  deed  im- 
ports to  be  the  grant  of  a  present  estate 
by  both,  and  it  is  the  apparent  intent  of 
both  that  the  grantee  shall  have  the 
estate  so  granted ;  but  the  deed  of  the 
latter  having  no  present  interest  to  ope- 
rate upon  as  a  grant,  nothing  can  pass 
by  it  as  a  grant.  But  this  party  has  a 
future   interest   in   the   subject,   out  of 


8  THE   LAW   OF   CONTRACTS.  [PART  II. 

parties  used  in  a  contract  technical  words  of  the  law  mer- 
chant, such  as  average,  or  agio,  or  gi»ace ;  these  words  could 
not  be  wrested  from  their  customary  and  established  mean- 
ing, on  the  ground  that  the  parties  used  them  in  a  sense 
which  had  never  before  been  given  to  them.  (A)  But  words 
will  be  interpreted  with  unusual  extent  of  meaning,  and 
held  to  be  generic  rather  than  specific,  and  thus  made  to 
cover  things  which  are  collateral  rather  than  identical,  if  the 
certain  meaning  of  the  parties,  and  the  obvious  justice  of  the 
case  require  this  extent  of  signification.  Thus  the  word 
"  men "  will  be  interpreted  to  mean  "  mankind,"  and  to 
include  women;  {i)  and  the  word  "bucks"  has  been  con- 
strued to  include  does  ;  and  the  word  "  horse  "  construed  to 
mean  "  mares.  "  [j) 

A  distinction  is  to  be  observed  between  the  construction 
of  a  contract  and  the  correction  of  a  mistake.  For  if  it  were 
in  proof  that  the  parties  had  intended  to  use  one  word,  and 
that  another  was  in  fact  used  by  a  mere  verbal  error  in  copy- 
ing or  writing,  such  error  might  be  corrected  by  a  court  of 
equity,  upon  a  bill  filed  for  that  purpose,  and  the  instrument 
so  corrected  would  be  looked  upon  as   the  contract  which 


which  he  may  make  good  to  the  gran-  v/hich  X\\&  jus  el  nornialoquendi  in  co^vcj- 
tee  the  estate  granted  to  him  by  the  ances  will  warrant,  there  is  nothing  of 
first  grantor.  This  is  to  be  done  by  a  violence  in  such  construction.  Indeed,  I 
particular  species  of  conveyance,  called  do  not  know  how  it  would  be  possible 
a  confirmation.  The  words  which  are  to  read  a  single  page  of  history  in  any 
used  in  this  deed,  in  their  strict  tcchni-  language,  without  using  the  same  lati- 
cal  sense,  are  words  of  confirmation  as  tude  of  construction  and  interpretation 
much  as  they  are  words  of  grant.  In  of  words.  To  go  one  step  beyond  these 
the  mouth  of  this  party  the  law  says,  instances  :  I  venture  to  lay  it  down  as 
%  that  they  are  words  of  confirmation,  and  a  general  rule  respecting  the  intcrjircta- 
shall  enure  as  words  of  confirmation,  in  tion  of  deeds,  that  all  "latitude  of  con- 
order  to  give  effect  to  his  deed,  ut  res  struction  must  submit  to  this  restriction, 
magis  valeat  (juain  pereat.  Here  again  namely,  that  the  words  may  hear  the  sense 
the  construction  which  the  law  puts  which  by  construction  is  put  upon  them, 
upon  the  words  of  the  deed  is  a  con-  If  we  step  beyond  this  line,  we  no 
struction  xohich  the  words  will  hear.  The  longer  construe  men's  deeds,  but  make 
words  have  several  technical  senses,  of  deeds  for  them." 

which  this  is  one,  and  the  law  prefers  {h)  Sec  Hutchison  v.  Bowkcr,  5  M.  & 

this,   because  it  carries  into  execution  W.  535. 

the  clear  intent  of  the  parties,  that  the  (i)  Bro.  Abr.  Exposition  del  Terms, 

estate   and   interest   conveyed   by  that  39. 

deed  shall  pass.     In  both   those  cases  (j)  State  v.  Dunnavant,  3  Brcv.  9. 

we  find  words  interpreted,  not  in  their  And  see  Packard  v.  Hill.  7  Cow.  434, 

most  general  and  obvious  sense  it  is  true  ;  5  Wend.  375. 
but  if  they  are  interpreted  in  a  manner 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.  9 

the  parties  had  made,  and  be  interpreted  accordingly,  (k) 
But  this  jurisdiction  is  confined  strictly  to  those  cases  where 
different  language  has  been  used  from  what  the  parties  in- 
tended. For  if  the  words  employed  were  those  intended  to 
be  used,  but  their  actual  meaning  was  totally  different  from 
that  which  the  parties  supposed  and  intended  them  to  bear, 
still  this  actual  meaning  would,  generally  if  not  always,  be 
held  to  be  their  legal  meaning.  (/)  Upon  sufficient  proof 
that  the  contract  did  not  express  the  meaning  of  the  parties, 
it  might  be  set  aside  ;  but  a  contract  which  the  parties  in- 
tended to  make,  but  did  not  make,  cannot  be  set  up  in  the 
place  of  one  which  they  did  make,  but  did  not  intend  to 
make. 

So  the  rules  of  law,  as  well  as  the  rules  of  language,  may 
interfere  to  prevent  a  construction  in  accordance  with  the 
intent  of  the  parties.  Thus,  if  parties  agreed  that  one  should 
pay  the  other,  for  a  certain  consideration,  sums  of  money  at 
various  times,  "  with  interest,"  and  it  was  clear,  either  from 
the  whole  contract  or  from  independent  evidence,  that  the  par- 
ties meant  by  this  "  compound  interest,"  it  may  be  presumed, 
assuming  that  a  contract  for  compound  interest  is  unlawful, 
that  no  court  would  admit  this  interpretation,  because  if  the 
bargain  were  expressly  for  compound  interest,  it  would  be  in- 
valid. Nor  would  a  contract  to  pay  interest  be  avoided  by 
evidence  that  the  parties  understood  compound  interest,  if  it 
were  made  in  good  faith,  and  for  a  valid  consideration.  The 
law  would  consider  the  contract  as  defining  the  principal 
sums  due,  and  then  would  put  upon  the  word  interest  its 
own  legal  interpretation. 

It  may  be  true  ethically,  that  a  party  is  bound  by  the 
meaning  which  he  knew  the  other  party  to  intend,  or  to  be- 
lieve that  he  himself  intended  ;  (;»)  but  certainly  this  is  not 

[k)  Adams's  Doctrine  of  Equity ,^p.  ave  fairly  susceptible  of  the  meaning  in 

169,  et.  seq.  -which  the  promisor  believed  they  were 

(/)  Ibid.  understood   by   the    promisee,   and    in 

[m)  "  Where  the   terms   of  the  pro-  which  they   were  actually  understood, 

mise  admit  of  more  senses  than  one,  the  rule  of  Paley  is  as  good  in  law  as 

the  promise  is  to  be  performed  in  that  in   ethics.     See   an   application    of  the 

sense  in  which  the  promisor  apprehend-  rule  in  Potter  v.  Ontario  and  Livingston 

ed,  at  the  time,  the  promisee  received  Mut.  Ins.  Co.  5  Hill,  147,  per /iroHson,  J. 

it."     Paley's  Mor.  and  Pol.  Philosophy,  In  this  case,  one  of  the  conditions  of  a 

104.   Where  the  terms  of  an  instrument  fire  policy  was,  that  in  case  the  assured 


10  THE   LAW   OF   CONTRACTS.  [PART  II. 

always  legally  true.  Thus,  in  the  cases  already  supposed, 
he  who  was  to  give  might  know  that  the  party  who  was  to 
receive,  (a  foreigner  perhaps,  unacquainted  with  our  lan- 
guage,) believed  that  the  promise  was  for  "  oxen,"  when 
the  word  "  horses  "  was  used  ;  but  nevertheless  an  action  on 
this  contract  could  not  be  sustained  for  "oxen."  So  if  he 
who  was  to  pay  money  knew  that  the  payee  expected  com- 
pound interest,  this  would  not  make  him  liable  for  compound 
interest  as  such,  although  the  specific  sums  payable  were 
made  less,  because  they  were  to  bear  compound  interest.  In 
all  these  cases,  it  is  one  question  whether  an  action  may  be 
maintained  on  the  contract  so  explained,  and  another  very 
different  question,  whether  the  contract  may  not  be  entirely 
set  aside,  because  it  fails  to  express  the  meaning  of  the  par- 
ties, or  is  tainted  with  fraud  ;  and  being  so  avoided,  the 
parties  are  left  to  fall  back  upon  the  rights  and  remedies  that 
may  belong  to  their  mutual  relations  and  responsibilities. 
These  must  be  determined  by  the  evidence  in  the  case  ;  and 
the  very  contract,  which,  as  a  contract,  could  not  be  enforced, 
might  well  be  evidence  of  great  importance  as  to  the  rights 
and  liabilities  of  the  parties. 

It  is  therefore  obvious  that  it  is  not  enough  in  every  in- 
stance to  ascertain  the  meaning  of  the  parties.  It  is  how- 
ever always  true  that  this  is  of  the  utmost  importance,  and 
often  sufficient  to  determine  the  construction.  And  courts  of 
law  have  established  various  rules  to  enable  them  to  ascer- 
tain this  meaning,  or  to  choose  between  possible  meanings. 

should  make  any  other  insurance  on  apprehend  at  the  time  that  the  plaintiff 
the  same  property,  and  should  not  with  would  receive  their  answer  ?  If  they 
all  reasonable  diligence  give  notice  secretly  reserved  tlie  right  of  apjjroval 
thereof  to  the  company,  and  have  the  or  disapproval  at  a  future  ])eriod,  could 
same  indorsed  on  the  policy,  or  other-  they  have  believed  that  their  written  an- 
wise  acknowledged  or  approved  by  them  in  swcr  would  be  so  received  hy  the  plain- 
wn</;iy,  the  policy  should  cease,  and  he  tiff?  I  think  not.  They  must  have  in- 
of  no  further  effect.  A  further  insur-  tended  the  plaintifl'  sliould  understand 
ance  was  effected,  and  notice  given  to  frc*!  the  answer  that  every  thing  had 
the  company.  It  was  answered  by  the  been  done  wiiich  was  necessary  to  a  con- 
secretary  of  the  company  in  these  words :  tinuunce  of  the  policy,  and  consequently 
"I  have  received  your  notice  of  addi-  tliat  tlicy  approved,  as  well  as  acknow- 
tional  insurance."  ISronson,  J.,  after  Icdgcd,  tlie  further  insurance."  Sec  also 
stating  Taley's  rule,  as  above  given,  1  Duer  on  Ins.  159. 
says:  — "  Now  how  did  the  defendants 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    11 

SECTION  III. 

SOME  OF  THE  GENERAL  RULES  OF  CONSTRUCTION. 

The  subject-matter  of  the  contract  is  to  be  fully  con- 
sidered, (n)  There  are  very  many  words  and  phrases  which 
have  one  meaning  in  ordinary  narration  or  composition,  and 
quite  another  when  they  are  used  as  technical  words  in  rela- 
tion to  some  special  subject;  and  it  is  obvious  that  if  this 
be  the  subject-matter  of  the  contract,  it  must  be  supposed 
that  the  words  are  used  in  this  specific  and  technical  sense. 

So,  too,  the  situation  of  the  parties  at  the  time,  and  of  the 
property  which  is  the  subject-matter  of  the  contract,  and  the 
intention  and  purpose  of  the  parties  in  making  the  contract, 
will  often  be  of  great  service  in  guiding  the  construction ; 
because  as  has  been  said,  this  intention  will  be  carried  into 
effect  so  far  as  the  rules  of  language  and  the  rules  of  law 
will  permit.  So  the  moral  rule  above  referred  to  may  be  ap- 
plicable ;  because  a  party  will  be  held  to  that  meaning  which 
he  knew  the  other  party  supposed  the  words  to  bear,  if  this 
can  be  done  without  making  a  new  contract  for  the  parties. 

Indeed,  the  very  idea  and  purpose  of  construction  imply  a 
previous  uncertainty  as  to  the  meaning  of  the  contract ;  for 
where  this  is  clear  and  unambiguous,  there  is  no  room  for 
construction,  and  nothing  for  construction  to  do.  A  court 
would  not,  by  construction  of  a  contract,  defeat  the  express 
stipulations  of  the  parties.     And  if  a  contract  is  false  to  the 

(n)  The  King  v.  Mashiter,  1  Nev.  &  it   was   /leld   that  a   legal  sentence  was 

Per.   326,   327.     Where   an    executrix  meant.     Unwin  v.    Wolseley,  1    T.  R. 

promised  to  pay  a  simple  contract  debt,  674.     If  an  annuity  be  granted  to  one, 

"when  sufficient  effects  were  received"  "pro  concilio  inipenso  et  impcndendo," 

from    the   estate   of  the   testator;  held,  (for  past   and   future    counsel)   if    the 

that  this  must  be  understood  to  mean  grantee  be  a  physician,  this  shall  be  un- 

effects  legally  applicable  to  the  debt  in  derstood  of  his  advice  as  a  physician, 

question,  and  that  the  executrix  might  and  if  he  be  a  lawyer,  of  his  advice  in 

first  pay  a  bond  debt.     Bowcrbank  v.  legal   matters.      Shep.   Touch,   p.    86. 

Monteiro,  4  Taunt.  844.     So,  where  it  See  Littlefield  v.  Winslow,  19  Maine, 

was  agreed  in  a  charter-party  to  employ  394,  398  ;  Sumner  v.  Williams,  8  Mass. 

a  captured  ship,  "as  soon  as  sentence  162,214;  Robinson  y.  Fiske,  25  Maine, 

of  condemnation  should  have  passed,"  401. 


12 


THE   LAW   OF   CONTRACTS. 


[part  II. 


actual  meaning  and  purpose  of  the  parties,  or  of  either  party, 
the  remedy  does  not  lie  in  construction,  but,  if  the  plaintiff 
be  the  injured  party,  in  assuming  the  contract  to  be  void, 
and  establishing  his  rights  by  other  atid  appropriate  means  ; 
or,  if  the  defendant  be  injured,  by  defending  against  the  con- 
tract on  the  ground  of  fraud  or  mistake,  if  the  facts  support 
such  a  defence. 

A  construction  which  would  make  the  contract  legal  is 
preferred  to  one  which  would  have  an  opposite  effect;  (o) 
and  by  an  extension  of  the  same  principle,  where  certain 
things  are  to  be  done  by  the  contract  which  the  law  has 
regulated  in  whole  or  in  part,  the  contract  will  be  held  to 
mean  that  they  should  be  so  done  as  would  be  either  required 
or  indicated  by  the  law.  (p) 

The  question  may  be  whether  the  words  used  should  be 
taken  in  a  comprehensive  or  a  restricted  sense  ;  in  a  general 
or  a  particular  sense  ;  in  the  popular  and  common  or  in  some 
unusual  and  peculiar  sense.  In  all  these  cases  the  court  will 
endeavor  to  give  to  the  contract  a  rational  and  just  construc- 
tion ;  but  the  presumption  —  of  greater  or  less  strength, 
according  to  the  language  used,  or  the  circumstances  of  the 
case — is  in  favor  of  the  comprehensive  over  the  restricted, 
the  general  over  the  particular,  the  common  over  the  unusual 
sense,  (q) 


(o)  "It  is  a  general  rule,''  saith  Lord 
Coke,  "  that  whensoever  the  words  of  a 
deed,  or  of  the  parties  without  deed, 
may  have  a  double  intendment,  and  the 
one  standeth  witli  law  and  rijrlit,  and 
the  other  is  wrongful  and  against  law, 
the  intendment  that  standeth  with  law 
shall  be  taken."  Co.  Litt.  42,  18.3.  And 
see  Churchwardens  of  St.  Saviour,  10 
Rep.  67  b  ;  Archibald  v.  Thomas, 
3  Cow.  284;  Riley's  Adm'rs  v.  Van- 
houten,  4  How.  (Miss.)  428;  Many  v. 
Bcckman  Iron  Co.  9  Paige,  188.  The 
same  doctrine  was  declared  by  Lord 
Lyndhttrst,  in  Sliore  v.  Wilson,  9  CI.  & 
Fin.  397.  "  The  rule,"  says  he,  "  is 
this,  and  it  is  a  fair  and  proper  rule, 
that  where  a  construction,  consistent 
with  lawful  condu(-t  and  lawful  inten- 
tion can  be  placed  upon  the  words  and 
acts  of  parties,  you  are*  to  do   so,  and 


not  unnecessarily  to  put  upon  these 
words  and  acts  a  construction  directly 
at  variance  with  what  the  law  prohibits 
or  enjoins."  — A  condition  to  assign  all 
offices  is  valid,  and  will  be  taken  to  ap- 
ply to  such  offices  as  are  by  law  assign- 
able. Harrington  v.  Kloprogge,  4 
Dougl.  5. 

(p)  Clark  V.  Pinney,  7  Cow.  681.  In 
this  case  there  was  a  contract  to  deliver 
Salina  salt  in  barrels ;  held,  that  such 
barrels  as  were  di  recited  by  statute  were 
to  be  understood  as  intended. 

(q)  What  Lord  EUenboroufjh  says  with 
regard  to  the  construction  of  the  poli- 
cy of  insurance,  is  equally  true  as  to 
all  other  instruments,  namely,  that  it 
must  be  construed  according  to  its  sense 
and  meaning  as  collected  in  the  first 
place  from  the  terms  used  in  it.  which 
terms  are  themselves  to  be  understood 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         13 

It  is  a  rule  that  the  whole  contract  should  be  considered  in 
determining  the  meaning  of  any  or  of  all  its  part^  (r)     The 


in  their  plain,  ordinary,  and  popular 
sense,  unless  they  have  generally  in  re- 
spect to  the  subject-matter,  as  by  the 
known  usage  of  trade,  or  the  like,  ac- 
quired a  peculiar  sense  distinct  from 
the  popular  sense  of  the  same  words,  or 
unless  the  context  evidently  points  out 
that  they  must,  in  the  particular  in- 
stance, and  in  order  to  effectuate  the 
immediate  intention  of  the  parties  to 
that  contract,  be  understood  in  some 
other  special  and  peculiar  sense.  Ro- 
bertson v.  French,  4  East,  135.  "The 
best  construction,"  says  Gibson,  C.  J., 
"  is  that  which  is  made  by  viewing  the 
subject  of  the  contract  as  the  mass  of 
mankind  would  view  it ;  for  it  may  be 
safely  assumed  that  such  was  the  aspect 
in  wliich  tlie  parties  themselves  viewed 
it.  A  result  thus  obtained  is  exactly 
what  is  obtained  from  the  cardinal  rule 
of  intention."  Schuylkill  Nav.  Co.  v. 
Moore,  2  Whart.  491.  —  "  Becoming  in- 
solvent "  means  a  general  inability  to 
pay  one's  debts,  not  a  taking  the  benefit 
of  the  Insolvent  Debtors'  Act,  unless 
the  context  so  restrains  it.  Biddlc- 
combe  v.  Bond,  4  Ad.  &  El.  3.32  ;  Par- 
ker V.  Gossage,  2  Cr.  M.  &  Ros.  617. 
See  also  Lord  Dormer  v.  Knight,  1 
Taunt.  417;  The  King  v.  Mainwaring, 
10  B.  &  Cr.  66  ;  Rawlins  i'.  Jenkins, 
4  Q.  B.  419  ;  Caine  v.  Horsfall,  1  Exch. 
519  ;  Lowber  v.  Le  Roy,  2  Sandf.  202  ; 
Denny  v.  Manhattan  Co.  2  Hill,  220. 
The  first  pi'oposition  of  Mr.  Wigmm,  in 
his  treatise  upon  the  admission  of  ex- 
trinsic evidence  in  aid  of  the  interjireta- 
tion  of  wills,  is  that,  "  A  testator  is  al- 
ways presumed  to  use  the  words  in 
which  he  expresses  himself,  according 
to  their  strict  and  primary  acceptation, 
unless  from  the  substance  of  the  will  it 
appears  that  he  used  them  in  a  different 
sense,  in  which  case  the  sense  in  which 
he  thus  appears  to  have  used  tliem  will 
be  the  sense  in  which  they  arc  to  be 
construed."  If  by  strict  and  primary 
meaning  is  meant  ordinary  meaning, 
the  rule  needs  no  qualification.  The 
object  of  interpretation  and  construc- 
tion is  to  find  the  intention  of  the  par- 
ties, and  surely  that  intention  is  best 
sought  by  affixing  to  the  M'ords  of  an 
instrument  such  meanings  as  are  com- 
mon or  ordinary.  Where,  however,  the 
law  has  defined  the  meaning  of  words, 
VOL.  II.  2 


they  must  be  understood  to  be  used 
in  the  sense  which  the  law  attaches  to 
them,  unless  the  context  or  the  circum- 
stances of  the  case  indicate  that  another 
meaning  is  the  one  in  which  they  are 
used.  Thus,  the  word  "  child  "  is  un- 
derstood to  mean  legitimate  child,  un- 
less a  different  meaning  is  pointed  out 
by  the  context,  or  extrinsic  facts.  Era- 
ser V.  Pigott,  Younge,  354 ;  Wilkinson 
V.  Adam,  1  Ves.  &  B.  422;  Gill  v. 
Shelley,  2  Rus.  &  M.  336. 

(r)  Ex  antecedentibus  et  consequen- 
tibus  fit  optima  interpretatio.  "  Every 
deed,"  says  Lord  Hobart,  "  ought  to  be 
construed  according  to  the  intention  of 
the  parties,  and  the  intents  ought  to  be 
adjudged  of  the  several  parts  of  the 
deed,  as  a  general  issue  out  of  tlie  evi- 
dence, and  intent  ought  to  be  picked 
out  of  every  part,  and  not  out  of  one 
woi'd  only."  Trcnchard  v.  Hoskins, 
Winch,  93.  And  see  Sicklemorei'.  This- 
tleton,  6  M.  &  S.  9  ;  Washburn  v.  Gould, 
3  Story,  122  ;  Chase  v.  Bradley,  26 
Maine,  531  ;  Merrill  v.  Gore,  29  Maine. 
346  ;  Hey  wood  v.  Perrin,  10  Pick.  228  ; 
Gray  v.  Clark,  1 1  Verm.  583  ;  Warren  v. 
Merrifield,  8  Mete.  96.  "It  is  a  true  rule 
of  construction  that  the  sense  and  mean- 
ing of  the  parties,  in  any  particular  part 
of  an  instrument,  may  be  collected  ex 
antecedentibus  et  conscqiientibiis ;  every 
part  of  it  may  be  brought  into  action, 
in  order  to  collect  from  the  whole  one 
uniform  and  consistent  sense,  if  that 
may  be  done."  Per  Lord  Ellenboroncjh. 
in  Barton  v.  Fitzgerald,  15  East,  541. 
In  the  Duke  of  Northumberland  v.  Er- 
rington,  5  T.  R.  522,  there  was  a  string 
of  covenants  upon  the  part  of  the  les- 
sees of  certain  mines,  in  which  they 
bound  themselves,  "jointly  and  seve- 
rally ; "  after  which  followed  a  cove- 
nant of  the  lessor.  Tliere  was  then  a 
further  covenant  on  the  part  of  the  les- 
sees to  render  an  account,  which  of 
itself  would  have  bound  them  only 
jointly.  Held,  that  the  words  "jointly 
and  severally,"  at  the  beginning  of  the 
covenants  by  the  lessees,  extended  to 
all  their  subsequent  covenants.  Buller, 
J.,  said:  —  "It  is  immaterial  in  what 
part  of  a  deed  any  particular  covenant 
is  inserted  ;  for  in  construing  it  we  must 
take  the  whole  deed  into  consideration, 
in  order  to  discover  the  meauing  of  the 


14 


THE   LAW   OF   CONTRACTS. 


[part  II. 


reason  is  obvious.  The  same  parties  make  all  the  contract, 
and  may  1^  supposed  to  have  had  the  same  purpose  and  ob- 
ject in  view  in  all  of  it,  and  if  this  purpose  is  more  clear  and 
certain  in  some  parts  than  in  others,  those  which  are  obscure 
may  be  illustrated  by  the  light  of  others.  Thus,  the  condi- 
tion of  a  bond  may  be  considered  to  explain  the  obligatory 
part,  (s)  And  the  recital  in  a  deed  or  agreement  has  some- 
times great  influence  in  the  interpretation  of  other  parts  of 
the  instrument,  (t)  The  contract  may  be  contained  in  seve- 
ral instruments,  which,  if  made  at  the  same  time,  between 


parties."  —  Where  there  are  recitals  of 
particular  chiims  or  considerations,  fol- 
lowed by  general  words  of  release,  the 
general  words  shall  be  restrained  by  the 
particular  recital.  Thus,  if  a  man 
sliould  receive  ten  pounds,  and  give  a 
receipt  for  it,  and  thereby  acquit  and 
release  the  person  of  all  actions,  debts, 
duties,  and  demands,  nothing  would  be 
released  but  the  ten  pounds ;  because 
the  last  words  must  be  limited  by  those 
foregoing.  2  Roll.  Abr.  409.  This 
case,  though  said  to  be  denied  by  Lord 
Holt,  in  Knight  v.  Cole,  1  Show.  l.'jO, 
155,  was  confirmed  by  Lord  Ellcnbo- 
Tough,  in  Payler  v.  Homersham,  4  M.  & 
S.  426.  See  also  Ramsden  v.  Hylton, 
2  Ves.  310;  Lampon  v.  Corke,  s'B.  & 
Aid.  G06;  Simons  v.  Johnson,  3  B.  & 
Ad.  175  ;  Lyman  v.  Clark,  9  Mass.  235 ; 
Rich  t'.  Lord,  18  Pick.  325;  Jackson  v. 
Stackhouse,  1  Cow.  122  ;  Mclntyrc  v. 
Williamson,  1  Edw.  Ch.  34.  For  the 
construction  of  sweeping  clauses,  see 
Moore  v.  Magrath,  Cowp.  9.  —  For  the 
effect  of  recitals  upon  the  construction 
of  mercantile  instruments,  see  Bell  v. 
Bruen,  1  How.  169,  184;  Lawrence  v. 
McCalmont,  2  How.  426,  449.— In 
Browning  i'.  Wright,  2  Bos.  &  Pul.  13, 
A.,  after  granting  certain  premises  in 
fee  to  B.,  and  after  warranting  the  same 
against  himself  and  his  heirs,  covenant- 
ed that  notwithstanding  any  act  by  him 
done  to  the  contrary,  he  was  seised  of 
the  premises  in  fee,  and  that  he  had  full 
poiccr,  'S'C;  to  convey  the  same ;  he  then 
covenanted  for  himself,  his  heirs,  execu- 
tors, and  administrators,  to  make  a 
cart-way,  and  that  B.  should  cpiictly 
enjoy  without  interruption  from  him- 
self or  any  person  claiming  under  liim, 
and  lastly,  that  lie,  his  heirs,  and  as- 
signs, and  all  persons  claiming  under 


him,  should  make  further  assurance. 
Held,  that  the  intervening  general  words, 
"  full  power,  &c.,  to  convey,"  were  ei- 
ther part  of  the  preceding  special  cove- 
nant ;  or,  if  not,  that  they  were  quali- 
fied by  all  the  other  special  covenants 
against  the  acts  of  himself  and  his  heirs. 
See  the  admirable  opinion  of  Lord  Eldon. 
See  also  Hesse  v.  Stevenson,  3  Bos.  & 
Pul.  565 ;  Nind  v.  Marshall,  3  Moore, 
703  ;  Broughton  v.  Conway,  Dyer,  240 
a ;  Cole  v.  Hawes,  2  Johns.  Cas.  203  ; 
Whallon  v.  Kauffman,  19  Johns.  97; 
Barton  v.  Fitzgerald,  15  East,  530 ; 
Saward  i".  Austey,  10  Moore,  55;  Cha- 
pin  V.  Clemitson,  1  Barb.  311  ;  Mills  v. 
Catlin,  22  Verm.  98.  —  Where,  in  a  sta- 
tute, general  words  follow  particular 
ones,  the  rule  is  to  construe  them,  as 
applicable  to  subjects  ejusdem  generis. 
Thus,  in  Sandinam  v.  Breach,  7  B.  & 
Cr.  96,  a  question  arose  upon  the  sta- 
tute 29  Car.  2,  c.  7,  which  enacts,  "  that 
no  tradesman,  artificer,  workman,  labor- 
er, or  other  person  or  persons,  shall  do 
or  exercise  any  worldly  labor,  business, 
or  work  of  their  ordinary  callings,  upon 
the  Lord's  day."  It  was  contended  that 
under  the  words  "  other  person  or  per- 
sons "  the  drivers  of  stage-coaches  were 
included.  Held  otherwise  for  the  above 
reason.  See  The  Queen  v.  Ncvill,  8  Q. 
B.452. — For  the  application  of  this  rule 
to  deeds  of  conveyance  where  there  arc 
particular  enumerations  or  descriptions, 
see  Doe  v.  Meyrick,  2  Cr.  &  Jer.  223  ; 
Jackson  v.  Stevens,  16  Johns.  110. — 
Parts  struck  out  of  an  instrument  may, 
it  seems,  be  regarded  in  its  construc- 
tion. Strickland  v.  Maxwell,  2  Cr.  & 
M.  .539. 

(s)  Coles  V.  Hulmo,  8  B.  &  Cr.  568. 

(t)  Moore  v.  Magrath,  Cowp.  9;  Chol- 
mondeley  v.  Clinton,  2  B.  cSb  Aid.  625. 


en.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    15 

the  same  parties,  and  in  relation  to  the  same  subject,  will  be 
held  to  constitute  but  one  contract,  (u)  and  the  court  will 
read  them  in  such  order  of  time  and  priority  as  will  carry 
into  effect  the  intention  of  the  parties,  as  the  same  may  be 
gathered  from  all  the  instruments  taken  together,  {v)  And 
the  recitals  in  each  may  be  explained  or  corrected  by  a 
reference  to  any  other,  in  the  same  way  as  if  they  were  only 
several  parts  of  one  instrument,  {w) 

Another  rule  requires  that  the  contract  should  be  supported 
rather  than  defeated,  (x)  Thus,  a  deed  which  cannot  ope- 
rate in  the  precise  way  in  which  it  is  intended  to  take  effect, 
shall  yet  be  construed  in  another,  if  in  this  other  it  can  be 
made  effectual,  (i/)     Thus,   a  deed  intended   for  a  release. 


(u)  Coldham  v.  Showier,  3  C  B.312  ; 
Makepeace  v.  Harvard  College,  10  Pick. 
298;  Sibley  v.  Holden,  Id.  249;  Odi- 
orne  v.  Sargent,  6  N.  H.  401  ;  Kaymond 
V.  Roberts,  2  Aikens,  204 ;  Strong  v. 
Barnes,  1 1  Verm.  221  ;  Taylor  d.  At- 
kyns  V.  Horde,  1  Burr.  60,  117;  Jack- 
son V.  Dunsbagh,  1  Johns.  Cas.  91 ; 
Hills  V.  Miller,  3'  Paige,  2.54  ;  Sewall  v. 
Henry,  9  Ala.  24 ;  Applegate  v.  Jacoby, 
9  Dana,  209  ;  Cornell  v.  Todd,  2  Denio, 
130.  So  also,  though  the  instruments 
are  not  made  at  the  same  time,  if  they 
can  be  connected  together  by  a  refer- 
ence from  one  to  the  other.  Van  Ha- 
gen  y.  Van  Rensselaer,  18  Johns.  420  ; 
Sawyer  v.  Hammond,  15  Maine,  40  ; 
Adains  v.  Hill,  16  Maine,  21.5. 

(d)  Whitehurst  v.  Boyd,  8  Ala.  375  ; 
Newhall  v.  Wright,  3  Mass.  138. 

(iv)  Sawyer  v.  Hammatt,  15  Maine, 
40. 

(x)  Smith  V.  Parkhurst,  3  Atk.  135  ; 
Pollock  V.  Stacy,  9  Q.  B.  1033.  In 
Pugh  V.  Leeds,  Cowp.  714,  there  was  a 
power  to  make  leases  in  possession,  but 
not  in  reversion.  A  lease  was  granted 
for  twenty-one  years,  to  commence  /"/om 
the  day  of  the  date.  Held,  that  "from 
the  day,  &c.,"  was  to  be  regarded  as  in- 
clusive, and  not  exclusive  of  the  day  of 
the  date.  Lord  Mansfield  said  :  — "  The 
ground  of  the  opinion  and  judgment 
which  I  now  deliver  is  that  '  from ' 
may,  in  the  vulgar  use,  and  even  in  the 
strictest  propriety  of  language,  mean 
either  inclusive  or  exclusive ;  tliat  the 
parties  necessarily  understood  and  used 


it  in  that  sense  which  made  their  deed 
effectual ;  that  the  courts  of  justice  are 
to  construe  the  words  of  parties  so  as 
to  effectuate  tiieir  deeds,  and  not  to  de- 
stroy them  ;  more  especially  where  the 
words  themselves  abstractedly  may  ad- 
mit of  either  meaning."  In  Brown  v. 
Slater,  16  Conn.  192,  the  following 
agreement  was  entered  into:  —  "Farm- 
ington,  Oct.  15t]i,  1825.  In  considera- 
tion of  Mrs.  Nancy  Hart's  becoming 
my  wife,  I  promise  to  give  her  at  the 
rate  of  one  dollar  per  week,  from  the 
date  of  our  marriage,  so  long  as  she 
remains  my  wife.  Elias  Brown."  This 
contract  was  put  in  suit  after  the  death 
of  the  husband,  and  the  defence  was, 
that  it  was  extinguished  by  the  mar- 
riage of  the  parties.  Held,  however, 
that  the  contract,  being  made  in  con- 
templation of  marriage,  and  purporting 
to  hold  forth  a  benefit  to  the  promisee, 
a  court  of  law  would  construe  it  as  pro- 
viding for  the  payment  of  a  sum  of  mo- 
ney to  her  after  the  termination  of  the 
coverture,  the  amount  to  be  ascertained 
by  its  duration.  Williams,  C.  J.,  said : 
"If  a  contract  admits  of  more  than  one 
construction,  one  of  which  will  render  it 
inefficacious  or  nullify  it,  that  construc- 
tion should  be  adopted  which  will  carry 
it  into  effect.  For  there  is  no  presump- 
tion against  the  validity  of  contracts. 
Nor  can  we  suppose  that  the  parties  sit 
down  to  make  a  contract  providing  for 
a  particular  event,  when  that  very  event 
would  make  it  void." 

{y)  Goodtitle  v.  Bailey,   Cowp.  600; 


16  THE   LAAV   OF   CONTRACTS.  [PART  11. 

which  cannot  operate  as  such,  may  still  take  effect  as  a  grant 
of  the  reversion,  as  a  surrender,  or  an  attornment;  or  even  as 
a  covenant  to  stand  seised.  (2)  So  a  deed  of  bargain  and 
sale,  void  for  want  of  enrolment,  has  been  held  to  take  effect 
as  a  grant  of  the  reversion,  (a)  If  several  grantors  join  in  a 
deed,  some  of  whom  are  able  to  convey  and  others  not,  it  is 
the  deed  of  him  or  them  alone  who  are  able,  (b)  And  if 
there  be  several  grantees,  one  of  whom  is  capable  of  taking 
and  the  others  not,  it  shall  enure  to  him  alone  who  can 
take,  (c)  So  if  a  mortgagor  and  mortgagee  join,  it  is  the 
grant  of  the  mortgagee  and  the  confirmation  of  the  mort- 
gagor, (d)  And  if  a  charter  will  bear  a  double  construction, 
and  in  one  sense  it  can  effect  its  purposes,  and  in  the  other 
not,  it  will  receive  the  construction  which  will  make  it  effi- 
cacious, (e)  The  court  cannot,  however,  through  a  desire  that 
there  should  be  a  valid  contract  between  the  parties,  under- 
take to  reconcile  conflicting  and  antagonistic  expressions,  of 
which  the  inconsistency  is  so  great  that  the  meaning  of  the 
parties  is  necessarily  uncertain.  Nor  where  the  language 
distinctly  imports  illegality,  should  they  construe  it  into  a 
different  and  a  legal  sense,  for  this  would  be  to  make  a  con- 
tract for  the  parties  which  they  have  not  made  themselves. 
But  where  there  is  room  for  it,  the  court  will  give  a  rational 
and  equitable  interpretation,  which,  though  neither  necessary 
nor  obvious,  has  the  advantage  of  being  just  and  legal,  and 
supposes  a  lawful  contract  which  the  parties  may  fairly  be 
regarded  as  having  made.  So,  for  the  same  reason,  all  the 
parts  of  the  contract  will  be  construed  in  such  a  way  as  to 

Doc  V.  Salkeld,  Willcs,  673;  Ilap^gcr-  shadow,  to  wit,  —  the  manner  of  pass- 

stoni'.  Ilaiibury,  5  B.  &  Cr  101;  Wallis  ing  it."     Per   Wil/es,  C.  J,   in   Roe  v. 

V.   Wallis,  4  Mass.   135;  Parker  r.  Ni-  Tranmarr,  Wilies,  684.     See  also  ante, 

chols.  7  Pick.  Ill  ;  Russell  v.  Coffin,  8  p.  7,  n.  (g). 

Id.   143;  Brewur  ().  Hardy,  22  Id.  376  ;         (r)  Sli'ep.  Touch.  82;    Roe  v.  Tran- 

Jackson  c.  Plod<;et,  16  Johns.  172  ;  Ko-  marr,  Wilies,  682. 

gers  V.  Eagle  i"ire  Ins.  Co.   9  Wend.         (a)  Smith  r.  Frederick,  1   Russ.  174, 
611;  Barrett  v.   French,  1    Conn.  354;  209;  Adams  v.  Steer.  Cro.  Jac.  210. 
Bryan     v.     Bradley,    16     Conn.    474.         (/»)  Shep.  Touch.  81,  82. 
"  The  judges  in  these  latter  tinics  (and         (c)  Sliep.  Touch.  82. 
I   think  very    righily)    have    gone    far-         ((/)  Doc  ?-.  Adams,  2  Cr.  &  Jer.  232 ; 
ther  than  formerly,  and   have  had  more  Doe  v.    Goldsmith,  2  Cy.  &  Jer.  674  ; 
consideration     for    the     substance,    to  Treport's  case,  6  Rep.  15. 
wit,  —  the  passing  of  the  estate  accord-         (» )  Molyn's  case,  6  Rep   6  a;  Church- 
ing to  the  intent  of  the  jjartics,  than  the  wardens  of  St.  Saviour,  10  Rep.  67  b. 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OP  CONTRACTS.  17 

give  force  and  validity  to  all  of  them,  and  to  all  of  the  lan- 
guage used,  where  that  is  possible.  (/)  And  even  parts  or 
provisions  which  are  comparatively  unimportant,  and  may 
be  severed  from  the  contract  without  impairing  its  effect  or 
changing  its  character,  will  be  suppressed  as  it  were,  if  in 
that  way,  and  only  in  that  way,  the  contract  can  be  sustain- 
ed and  enforced.  This  desire  of  the  law  to  effectuate  rather 
than  defeat  a  contract,  is  wise,  just,  and  beneficial.  But  it 
may  be  too  strong.  And  in  some  instances  language  is  used 
in  reference  to  this  subject  which  itself  needs  construction, 
and  a  construction  which  shall  greatly  qualify  its  meaning. 
Thus,  Lord  C.  J.  Hobart  said:  —  "I  do  exceedingly  com- 
mend the  judges  that  are  curious  and  almost  subtle,  astute^ 
(which  is  the  word  used  in  the  Proverbs  of  Solomon  in  a 
good  sense  when  it  is  to  a  good  end,)  to  invent  reasons  and 
means  to  make  acts  according  to  the  just  intent  of  the  par- 
ties, and  to  avoid  wrong  and  injury,  which  by  rigid  rules 
might  be  wrought  out  of  the  act."  {g)  Lord  Hale  quotes 
and  approves  these  words,  [h)  and  Wi/les,  C  J.,  quoting 
Hale's  approbation,  adds  his  own.  (i)  And  yet  this  cannot 
be  sound  doctrine;  it  cannot  be  the  duty  of  a  court  that  sits 
to  administer  the  law,  and  for  no  other  purpose,  to  be  curious 
and  subtle,  or  astute,  or  to  invent  reasons  and  make  acts,  in 
order  to  escape  from  rigid  rules.     All  that  can  be  true  or 


(/)  Thus  in  Evans  v.    Sanders,   8  the  sort  and  the  pieces.   The  ambiguous 

Port.  497,  there  was  a  promise  to  pay  a  words  —  of  such  sort  and  such  pieces  as 

sum  of  money  Jan.  1st,  1836,  "  with  in-  he  pleases  —  would  in  the  contrary  con- 

terest  from   1835."     Held,  that  the  ex-  struction  be   needless,  and  produce  no 

pression  "from  1835,"  in  order  that  it  effect.     If  the  choice  had  been  intended 

might  have   some   operation,   must  be  for   the  elder  son,   the   testator  would 

construed  as  meaning  from  the  first  of  have   had   no   occasion    to    add    these 

January,  1835.     This  rule  is  well  illus-  words.     For  by  leaving  all  his  plate  to 

trated  also  by  a  case  put  by  Rutherforth  the  elder,  except  one  thousand  ounces 

in  his  Institutes  of  Natural  Law,  B.  2,  of  it,  which  the  elder  within   a  certain 

ch.  7.     '•  If  a  testator,"    says   he,  "  be-  time  is  to  deliver  to  the  younger,  the 

queathes  all  his  plate  to  his  elder  son,  sort  and  pieces  to  be  delivered  would 

except  one  thousand  ounces,  which  he  of  course  have  been  at  the  option  of  the 

bequeathes  to  his  younger  son,  and  di-  elder;  since  the  younger  would  by  the 

rects  that  the  elder  shall,  at  a  certain  will  have  had  no  claini  but  to  a  certain 

time,  deliver  to  the  younger  one  thou-  weight  of  plate." 

sand  ounces  of  the  said  plate,  of  such  (g)  Clanrickard  v.  Sidney,  Hob.  277. 

sort  and  such  pieces  as  he  pleases;  this  {/;)  Crossing  v.   Scudamore,  1   Vent, 

rule  would  determine  the  intention  of  141. 

the   testator   to    have    been,    that    his  ()')  Doeu.  Salkeld,  Willes,  676  ;  Koeu. 

younger  son  should  have  the  choice  of  Tranmarr,  Id.  684. 

2  * 


18 


THE   LAW   OF    CONTRACTS. 


[part  II. 


wise  in  this  doctrine  is,  that  courts  should  effectuate  a  con- 
tract or  an  instrument  wherever  this  can  be  done  by  a  per- 
fectly fair  and  entirely  rational  construction  of  the  language 
actually  used.  To  do  more  than  this  would  be  to  sacrifice 
to  the  apparent  right  of  one  party  in  one  case,  that  stedfast 
adherence  to  law  and  principle,  which  constitutes  the  only 
protection  and  defence  of  all  rights,  and  all  parties. 

Another  rule  requires  that  all  instruments  should  be  con- 
strued "  contra  proferentem.''^  That  is,  against  him  who 
gives  or  undertakes,  or  enters  into  an  obligation,  [j)  This 
rule  of  construction  is  reversed  in  its  application  to  the 
grants  of  the  sovereign  ;  for  these  are  construed  favorably  to 
the  sovereign,  although  he  is  grantor,  [k)     The  reason  of  the 


( j)  Windham's  case,  5  Rep.  7  b ;  Chap- 
man V.  Dalton,  Plowd.  289 ;  The  Ada, 
Davcis,407  ;  Thrall  u.  Newell,  19  Verm. 
202  ;  per  Alderson,  B  ,  in  Meyer  v.  Isaac, 
6  M.  &  W.  612.  This  rule  of  construc- 
tion, —  verba  chartarum  fortius  accipi- 
untur contra  proferentem,  —  is  well  illus- 
trated by  the  case  of  Dann  v.  Spurrier, 
3  B.  &  P.  .399,  in  whicli  it  was  held  that 
a  lease  to  one,  '•  to  hold  for  seven,  four- 
teen, or  twenty-one  years,"  gave  to  the 
lessee,  and  him  alone,  the  option  at 
which  of  the  periods  named  the  lease 
should  determine.  See  also  Doe  v. 
Dixon,  9  East,  15. — The  construction 
of  grants  should  be  favorable  to  the 
grantee.  Throckmerton  v.  Tracv.  Plow. 
154,  161 ;  Doe  v.  Williams,  I  H.'Bl.  25  ; 
Charles  River  Bridge  v.  Warren  Bridge, 
11  Pet.  420,  589;  Jackson  v.  Biodgct, 
16  Johns.  172;  Melvin  v.  Proprietors, 
&c.,  on  Mer.  River,  5  Mctc.  15,  27  ;  Co- 
clieco  Man.  Co.  v.  Whitticr,  10  N.  II. 
305;  Lincoln  v.  Wilder,  29  Maine,  169; 
Mills  V.  Catlin,  22  Verm  98;  Winslow 
V.  Patten,  34  Maine,  25.  This  construc- 
tion, however,  must  be  a  fair  and  just 
one,  for  "  there  is  a  kind  of  e(|uify  in 
grants,  so  that  they  shall  nof  l)e  taken 
unreasonalily  against  tlie  grantor,  and 
yet  shall  with  reason  be  extended  most 
liberally  for  tlie  grantee."  Per  Saun- 
ders, J.,  in  Throckmorton  v.  Tracy, 
Plowd.  161. 

(k)  Willion  v.  Berkley,  Plowd.  243; 
Jackson  v.  Reeves,  3  Caines,  293.  They 
ahall.  however,  "  have  no  strict  or  nar- 
row interpretation  for  the  overthrowing 
of  them,"  but  "  a  liberal  and  favorable 


construction  for  the  'making  of  them 
availal)le  in  law,  ■us<pie  ad  plenitudinem, 
for  the  honor  of  the  king."  2  Inst.  496. 
'•And  so  note,"  saith  Lord  Coke,  "  the 
gravity  of  the  ancient  sages  of  the  law 
to  construe  the  king's  grant  beneficially 
for  his  honor,  and  the  relief  of  the  sub- 
ject, and  not  to  make  any  strict  or  lite- 
ral construction  in  subversion  of  such 
grants."  Molyn's  case,  6  Rep.  6  a.  See 
also  Churchwardens  of  St.  Saviour,  10 
Rep.  67  b.  Accordingly,  the  rule  in 
question  is  of  less  weiglit  than  the  rule 
that  an  instrument  sliould  be  supported 
rather  than  defeated ;  and  is  not  applied 
to  defeat  a  contract  entirely,  Init  only 
to  limit  the  extent  of  the  grant;  for  a 
grantor,  whether  king  or  subject,  is  al- 
ways held  to  have  intended  something 
by  his  grant.  "  It  is  a  well-known  rule, 
in  the  construction  of  private  grants,  if 
the  meaning  of  the  words  be  doubtful, 
to  construe  them  most  strongly  against 
the  grantor.  But  it  is  said  that  an  op- 
posite rule  prevails,  in  cases  of  grants 
by  the  king ;  for  where  there  is  any 
doubt,  the  construction  is  made  most 
favorably  for  the  king  and  against  the 
grantee.  The  rule  is  not  disputed.  But 
it  is  of  very  limited  application.  To 
what  cases  does  it  apply  'f  To  such 
cases  only  where  there  is  a  real  doubt, 
where  the  grant  admits  of  two  intepre- 
tations,  one  of  which  is  more  extensive 
and  the  other  more  restricted  :  so  that 
a  choice  is  fairly  open,  and  either  may 
be  adopted  without  any  violation  of  the 
apparent  ol)jccfs  of  the  grant.  If  the 
king's  grant  admits  of  two  interpreta- 


CH,  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         19 

rule  '■'■  contra  proferentem''^  is,  that  men  may  be  supposed  to 
take  care  of  themselves,  and  that  he  who  gives,  and  chooses 
the  words  by  which  he  gives,  ouglit  rather  to  be  held  to  a 
strict  interpretation  of  them  than  he  who  only  accepts.  (/) 
But  the  reason  is  not  a  very  strong  one,  nor  is  the  rule  of 
special  value.  It  is  indeed  often  spoken  of  as  one  not  to  be 
favored  or  applied  unless  other  principles  of  interpretation 
fail  to  decide  a  question,  [m)     It  is  of  course  most  applicable 


'tions,  one  of  wliich  will  make  it  utterly 
void  and  worthless,  and  the  other  will 
give  it  a  reasonable  effect,  then  the  lat- 
ter is  to  prevail ;  for  the  reason  (says 
the  common  law)  'that  it  will  he  more 
for  the  benefit  of  the  subject  and  the  ho- 
nor of  the  king-,  which  is  more  to  he  re- 
garded than  his  profit.'  10  Co.  67  b. 
And  in  every  case  the  rule  is  made  to 
bend  to  the  real  justice  and  integrity  of 
the  case.  No  strained  or  extravagant 
construction  is  to  be  made  in  favor  of 
the  king.  And  if  the  intention  of  the 
grant  is  obvious,  a  fair  and  liberal  in- 
terpretation of  its  terms  is  enforced." 
Per  Slory,  J.,  Charles  River  Bridge  v. 
Warren  Bridge,  11  Pet.  591,  597.  It  is 
laid  down  by  Mr.  Justice  Story,  that  the 
grants  of  the  sovereign  are  construed 
against  the  grantee  only  in  cases  of 
mere  donation,  and  not  where  there  is  a 
valuable  consideration ;  that  the  rule 
has  no  application  in  cases  of  legisla- 
tive grants.  II  Pet.  597,  598.  It  is 
just  and  reasonable  that  the  construc- 
tion sliould  be  favorable  to  the  grantee, 
in  the  case  of  a  conveyance  of  lands  by 
the  sovereign  for  a  valuable  considera- 
tion; but  where  exclusive  privileges  are 
given  to  an  individual  or  to  a  company, 
and  riglits  conferred  restrictive  of  those 
of  the  public,  or  of  private  persons,  the 
constructiiin,  in  cases  of  doubt  or  ambi- 
guity, is  against  the  grantee,  especially 
where  burdens  are  imposed  upon  the 
public,  as  in  the  case  of  rates  of  toll  im- 
posed for  the  benefit  of  a  company.  In 
Stourbridge  Can.  Co.  v.  Wheeley.  2  B. 
&  Ad.  792.  where  a  right  of  takinu:  toll 
was  given  to  a  company.  Lord  Tenter- 
den  used  thefoUowmg  language  :  "  This, 
like  many  other  cases,  is  a  tiargain  be- 
tween a  company  of  adventurers  and 
the  public,  the  terms  of  which  are  ex- 
pressed in  the  statute  ;  and  the  rule  of 
construction  in  all  such  cases  is  now 
fully  established  to  be  this  ;  that  any 


ambiguity  in  the  terms  of  the  contract 
must  operate  against  the  adventurers, 
and  in  favor  of  the  public ;  and  the 
plaintiffs  can  claim  nothing  which  is 
not  clearly  given  to  them  by  the  act." 
Blakemore  v.  Glamorganshire  Can.  Nav. 
1  Myl.  &  K  154,  162,  per  Lord  Eldon ; 
Gildart  v.  Gladstone,  11  East,  674,  685; 
Leeds  and  Liverpool  Can.  I'o.  v.  Hust- 
ler, 1  B.  &  Cr.  424  ;  Barrett  v.  Stock- 
ton, &c.  Railway  Co  2  M  &  Gr.  1.35  ; 
Parker  v.  Great  Western  Railway  Co. 
7  M.  &  Gr.  253  ;  Mohawk  Bridge  Co. 
V.  Utica  &  Sch.  R.  R.  Co.  6  Paige,  554. 
In  Priestley  r.  Foulds,  2  M.  &  Gr.  194, 
in  tiie  case  of  a  legislative  grant  to  a 
com]iany  such  as  those  above  mention- 
ed, Coltnian,  J.,  said  :  —  "  The  words  of 
the  act  must  be  considered  as  the  lan- 
guage of  the  company,  which  ought  to 
be  construed  fortius  contra  proferentem." 
— This  rule  of  construction,  ^'contra  pro- 
ferentem," is  applied  in  pleading.  13ac. 
Max.  Reg.  3;  but  is  not  applied  to 
wills;  nor  to  statutes,  verdicts,  judg- 
ments, &c.,  which  are  not  words  of  par- 
ties.    111. 

(/)   Per   Afderson,   B.,   in    Mever    v. 
Isaac,  6  M.  &  W.  612. 

(m)  "It  is  to  be  noted,"  saith  Lord 
Baron,  "that  this  rule  is  the  last  to  be 
resorted  to,  and  is  never  to  be  relied 
.upon  but  wiiere  all  other  rules  of  expo- 
sition of  words  fail ;  and  if  any  otiier 
come  in  [dace,  this  giveth  place.  And 
that  is  a  point  worthy  to  be  observed 
getierally  in  the  rules  of  the  law,  that 
when  they  encounter  and  cross  one  ano- 
ther in  any  case,  it  be  understood  which 
the  law  huldeth  worthier,  and  to  be  pre- 
ferreil;  and  it  is  in  this  i)articiilar  very 
notal)lc  to  consider,  that  this  being  a 
rule  of  some  strictness  and  rigor,  doth 
not  as  it  were  its  office,  but  in  absence 
of  other  rules  which  are  of  more  equity 
aiul  humanity."  Bac  Max.  Reg.  3. 
See  also  Love  v.  Pares,  15  East,  80.   So 


20 


THE   LAW   OF   CONTRACTS. 


[part  II. 


to  deeds  poll,  (n)  as  if  tenant  in  fee  simple  grants  an  estate  "  for 
life,"  it  is  held  to  be  for  the  life  of  the  grantee,  (o)  Where 
there  is  an  indenture,  the  words  may  be  taken  as  the  words 
of  both  parties.  But  if  in  fact  one  gives  and  the  other  re- 
ceives, the  same  rule  applies  as  in  case  of  deeds  poll,  (p)  As 
if  two  tenants  in  common  grant  a  rent  of  twenty  shillings, 
the  grantee  takes  forty,  or  twenty  from  each  ;  but  if  they 
reserve  in  a  lease  twenty  shillings,  they  take  only  the  twenty, 
or  ten  each,  (q)  And  in  general,  if  a  deed  may  inure  to  se- 
veral different  purposes,  he  to  whom  it  is  made  may  elect  in' 
what  way  to  take  it.  (r)     Thus,  if  an  instrument  may  be 


in  Adams  v.  Warner,  23  Verm.  411, 
412,  Mr.  Justice  Redjwld  said  :  —  "  This 
rule  of  construction  is  not  properly  ap- 
plicable to  any  case,  but  one  of  strict 
equivocation^  where  the  words  used  will 
bear  either  one  of  two  or  more  inter- 
pretations equally  well.  In  such  a  case, 
if  there  be  no  other  legitimate  mode  of 
determining  the  equipoise,  this  rule 
might  well  enough  decide  the  case.  In 
all  other  cases,  where  this  rule  of  con- 
struction is  dragged  in  by  way  of  argu- 
ment—  and  that  is  almost  always  where 
it  happens  to  fall  on  the  side  which  we 
desire  to  support — it  is  used  as  a  mere 
make-weight,  and  is  rather  an  argument 
than  a  reason."  See  also  Doe  v.  Dodd, 
5  B.  &  Ad.  689. 

{n)  The  reason  given  in  the  books 
for  the  application  of  this  rule  to  deeds 
poll,  and  not  to  indentures,  is  that  in 
deeds  poll  the  words  are  the  words  of 
the  grantor  alone,  while  in  indentures 
they  are  the  words  of  both  parties.  2 
Bl.  Com.  380 ;  Browning  v.  Beston, 
Plowd.  134.  Tiic  distinction  seems, 
however,  to  be  in  a  good  degree  with- 
out foundation.  It  is  true  that  tiie 
words  of  a  deed  poll  are  the  words  of 
the  grantor  alone,  but  it  is  not  true  that 
the  words  of  an  indenture  are  the  words 
of  both  ])arties  in  any  such  sense  as  to 
make  the  rule  in  question  inapplicable. 
See  Gaivdy,  aiyjnendo,  in  Browning  v. 
Beston,  Plowd,  136.  Words  of  excep- 
tion or  reservation  in  any  instrument 
are  regarded  as  the  words  of  the  party 
in  whose  favor  the  exception  or  reser- 
vation is  made.  Loficld's  case,  10  Rep. 
106  b;  Hill  V.  Grange,  Flosvd.  171; 
Blackett  v.  Royal  Exch.  Ass.  Co.  2  Cr. 


&  Jer.  244,  2,51 ;  Donnell  v.  Columbian 
Ins.  Co.  2  Sumn.  366,  381  ;  Palmer  v. 
Warren  Ins.  Co.  1  Sto.  360.  And  they 
would  be  construed  against  such  party, 
lb. ;  Cardigan  v.  Armitage,  5  B.  «fc  Cr. 
197;  Bullen  v.  Denning,  5  B.  &  Cr. 
842 ;  Jackson  v.  Hudson,  3  Johns.  387 ; 
House  V.  Palmer,  9  Geo.  497  ;  Jackson 
V.  Lawrence,  11  Johns.  191.  Separate 
covenants  in  an  indenture  on  the  part 
of  the  lessor  and  lessee,  and  indeed  any 
stipulation  on  the  part  of  either  party  to 
an  agreement,  would  be  regarded  as  the 
covenants  and  stipulations  of  the  party 
bound  to  do  the  thing  agreed  npon,  and 
the  rule  of  construction  ''contra  profe- 
rentem "  would  apply  to  such  cases,  sub- 
ject to  all  the  limitations  which  pro- 
perly belong  to  it.  "  It  is  (.'ertainly 
true,"  says  Lord  Eldon,  "  that  the  words 
of  a  covenant  arc  to  be  taken  most 
strongly  against  the  covenantor ;  but 
that  must  be  qualified  by  the  observa- 
tion that  a  due  regard  must  be  ])aid  to 
the  intention  of  the  parties,  as  collected 
from  the  whole  context  of  the  instru- 
ment." Browning  v.  Wright,  2  B.  & 
Pul.  22  ;  Earl  of  Shrewsbury  v.  Gould, 
2  B.  &  Aid.  487,  494;  Barton  v.  Fitz- 
gerald, 15  East,  5.30,  546. 

(o)  Co.  Litt.  42  a. 

(/))  Sec  supra,  n.  (?i). 

(q)  Browning  v.  Beston,  Plowd.  140; 
Throckmerton  v.  Tracy,  Id.  161  ;  Hill 
V.  Grange,  Id.  171  ;  Ciiapnian  v.  Dal- 
ton.  Id.  289  ;  Shop.  Touch.  98;  Co.  Lit. 
197  a. 

(r)  Shcp.  Touch.  83  ;  Hcyward's  case, 
2  llcp.  35  b;  Jackson  v.  Hudson,  3 
Jolins.  387 ;  Jackson  v.  Blodgct,  16 
Johns.  172,  178. 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    21 


either  a  bill  or  promissory  note,  the  holder  may  elect  which 
to  consider  it.  (s)  So  if  a  carrier  gives  two  notices  limiting 
his  responsibility,  he  is  bound  by  that  least  favorable  to  him- 
self, (t)  So  a  notice  under  which  one  claims  a  general  lien 
is  to  be  construed  against  the  claimant.  The  same  rule,  we 
think,  applies  to  the  case  of  an  accepted  guaranty,  though 
upon  this  point  the  authorities  are  soraev^hat  conflicting,  (u) 


(s)  Ellis  V.  Burv,  6  B.  &  Cr.  433  ; 
Block  V.  Bell,  1  Mood.  &  Rob.  149; 
Miller  v.  Thompson,  4  Scott,  N.  R.  204. 

(t)  Munn  V.  Baker,  2  Stark.  255.  See 
also  ante,  vol.  1,  p.  719,  n.  (z). 

(u)  Some  judges  have  been  of  opinion 
that  the  contract  of  guaranty  is  a  con- 
tract sirictissimi  juris,  and  to  be  con- 
strued in  favor  of  the  guarantor.  Thus, 
in  Nicholson  v.  Paget,  I  Cr.  &  M.  48, 
where  the  words  were,  "  I  hereby  agree 
to  be  answerable  for  the  payment  of 
£50  for  B.,  in  case  B.  docs  not  pay  for 
the  gin,  &c.,  wliicii  he  receives  from  you, 
and  I  will  pay  the  amount,"  tlie  Court 
of  Exchequer  held  that  this  was  not  a 
continuing  guaranty.  And  Daijlcy,  B., 
said : —  "  This  is  a  contract  of  guaranty, 
which  is  a  contract  of  a  peculiar  de- 
scription ;  for  it  is  not  a  contract  which 
a  party  is  entering  into  for  the  payment 
of  his  own  debt,  or  on  his  own  behalf; 
but  it  is  a  contract  which  he  is  entering 
into  for  athird  f)crson  ;  and  we  think  that 
it  is  the  duty  of  the  party  wlio  takes  such 
a  security  to  see  tiiat  it  is  couched  in 
such  words  as  that  the  party  so  giving 
it  may  distinctly  understand  to  what 
extent  he  is  binding  himself.  .... 
It  is  not  unreasonal)le  to  expect,  from  a 
party  who  is  furnishing  goods  on  tlie 
faith  of  a  guaranty,  that  he  will  take  the 
guaranty  in  terms  which  shall  plainly 
and  intelligibly  point  out  to  the  party 
giving  tlie  guaranty  the  extent  to  which 
he  expects  that  the  liability  is  to  be  car- 
ried." And  see  to  the  same  effect  Mel- 
ville V.  Hayden,  3  B.  &  Aid.  593.  On 
the  other  hand,  in  the  later  case  of 
Meyer  v.  Isaac.  6  M.  &  W.  G05,  4  Jur. 
437,  the  counsel  for  the  defendant  hav- 
ing cited  Niciiolson  v.  Paget,  Parke,  B., 
said  :  —  "  Can  you  find  any  other  author- 
ity in  favor  of  that  rule  of  con.struction  ? 
It  certainly  is  at  variance  with  the  ge- 
neral principle  of  the  common  law,  that 
words  are  always  to  be  taken  most 
strongly  against  the  party  using  them. 
Here  is  a  guaranty  in  the  shape  of  a 


letter  written  by  the  defendant,  with  the 
view  of  inducing  the  plaintiff'  to  give 
credit  to  a  particular  person.  Now,  a 
guaranty  is  one  of  that  class  of  obliga- 
tions wliich  is  only  binding  on  one  of 
the  parties  when  the  other  chooses  by 
his  own  act  to  make  it  binding  on  him 
also.  This  instrument  only  contains 
the  words  of  one  of  the  parties  to  it, 
namely,  of  the  defendant;  and  does  not 
affect  the  plaintiff'  until  he  acts  upon  it 
by  supplying  the  goods."  And  Alder- 
son,  B.,  in  delivering  the  judgment  of 
the  court,  said  :  —  "  'I'liere  is  considera- 
ble diffficulty  in  reconciling  all  the  cases 
on  this  sui)ject;  which  principally  arises 
from  the  fact  that  they  are  not  quite  at 
one  on  the  principle  to  be  followed  in 
deciding  questions  of  this  sort ;  some 
laying  it  down  that  a  liberal  construc- 
tion ought  to  bo  made  in  favor  of  the 
person  giving  the  guaranty  ;  and  others 
that  it  ought  to  be  in  favor  of  the  party 
to  whom  it  is  given,  which  was  the  rule 
adopted  by  the  Court  of  Queen's  Bench 
in  Mason  v.  Pritchard.  Now,  the  gene- 
rally received  principle  of  law  is,  that 
the  party  making  any  instrument  should 
take  care  so  to  express  the  nature  of 
his  own  liability,  as  that  he  may  not 
be  bound  beyond  what  it  was  his  in- 
tention he  should  be,  and,  on  the  other 
hand,  that  the  party  who  receives 
the  instrument,  and  on  the  faith  of  it 
parts  with  his  goods,  which  he  would 
not,  perhaps,  have  parted  with  other- 
wise, and  is,  moreover,  not  the  person 
by  whom  the  words  of  the  instrument 
constituting  the  liability  are  used  at  all, 
should  have  that  instrument  construed 
in  his  favor.  If,  therefore,  I  were  obli- 
ged to  choose  between  the  two  con- 
flicting principles  which  have  been  laid 
down  on  this  subject,  I  should  rather 
be  disposed  to  agree  with  that  given  in 
Mason  v.  Pritchard,  than  with  the  opi- 
nion of  Baijlcy,  B.,  in  Nicholson  v.  Pa- 
get." See  also  Mason  v.  Pritchard,  12 
East,  227  ;  Hargreave  v.  Smee,  6  Bing. 


22 


THE   LAW   OF    CONTRACTS. 


[part  II. 


In  cases  of  mutual  gift  or  mutual  promise,  where  neither 
party  is  more  the  giver  or  undertaker  than  the  other,  this 
rule  would  have  no  application,  (v)  Nor  does  it  seem  that 
it  is  permitted  to  affect  the  construction  when  a  third  party 
would  be  thereby  injured.  As  if  tenant  in  tail  make  a  lease 
"  for  life  "  generally,  this  shall  be  construed  to  be  a  lease  for 
the  life  of  the  lessor,  that  the  reversioner  may  not  suffer,  (lo) 
Another  reason  is,  that  a  tenant  in  tail  cannot  legally  grant 
a  lease  for  another's  life,  and  the  rule  of  Lord  Coke  is  ap- 
plied ;  namely,  that  an  intendment  which  stands  with  the 
law  shall  be  preferred  to  one  which  is  wrongful  and  against 
the  law.  (x)  This  rule,  that  words  shall  be  construed  "  con- 
tra proferentem,^^  was,  says  Lord  Bacon,  "  drawn  out  of  the 
depth  of  reason ;  "  {y)  but  we  have  already  intimated  that  it 
is  among  those  principles  of  interpretation  which  have  the 
least  influence  or  value. 

No  precise  form  of  words  is  necessary  even  in  a  special- 
ty, (c)     Thus,  words  of  recital  in  a  deed  will  constitute  an 


244.     And  see  ante,  vol.  1,  p.  508,  and 
notes. 

(y)  Co.  Lift.  42  a,  183  a.  The  con- 
dition of  an  obligation  is  considered  as 
the  language  of  tiie  obligee,  and  so  is 
construed  in  favor  of  the  obligor.  In 
the  language  of  Baldwin,  C.  J.,  and 
Fitzherbert,  J.,  in  Bold  v.  Molineux, 
Dyer,  14b,  17  a,  "every  condition  of 
an  obligation  is  as  a  defeasance  of  the 
obligation,  as  well  as  if  the  obligation 
were  single,  and  after  the  obligee  made 
indentures  of  defeasance,  and  it  is  all 
one,  for  the  condition  is  the  assent  and 
agreement  of  tlie  obligee,  and  made  for 
the  benefit  of  the  obligor;  and  for  that 
reason  it  shall  always  be  taken  most 
favorably  for  the  obligor:  as  if  a  man 
be  bound  in  an  obligation  to  i)ay  ten 
pounds  before  such  a  [feast]  day,  the 
obligor  is  not  bound  to  pay  it  till  the 
last  instant  of  the  next  day  preceding 
the  feast,  for  he  hath  all  that  time  for 
his  liberty  of  payment.  So  is  the  law, 
if  I  be  bound  to  you  on  condition  to 
pay  ten  pounds  before  the  feast  of  St. 
Thomas,  and  there  arc  two  feasts  of  St. 
Thomas,  the  latest  feast  is  that  before 
which  I  am  bound  to  ])ay,  and  not 
sooner,  for  that  is  most  for  ray  advan- 
tage."    Se  also  Shcp.  Touch.  375,  376  ; 


Powell  on  Contracts,  396,  397  ;  Laugh- 
ter's case,  5  Rep.  21  b. 

(w)  Co.  Litt.  42  a. 

(x)  See  ante,  p.  12,  n.  (o). 

ly)  Bac.  Max.  Reg.  3. 

(z)  "  In  our  law,"  says  Catline,  Ser- 
geant, arguendo,  in  Browning  ik  Beston, 
Plowd.  140,  "  if  any  persons  are  agreed 
upon  a  thing,  and  words  are  expressed 
or  written  to  make  the  agreement,  al- 
though they  are  not  apt  and  usual 
words,  yet  if  they  have  substance  in 
them  tending  to  the  elTect  proposed,  the 
law  will  take  them  to  be  of  tiie  same 
cifect  as  usual  words ;  for  the  law  al- 
ways regards  the  intention  of  the  par- 
ties, and  will  apply  the  words  to  that 
which,  in  common  presumi)tion,  may 
be  taken  to  be  their  intent.  And  such 
laws  are  very  commendable.  For  if  the 
law  should  be  so  precise,  as  always  to 
insist  upon  a  peculiar  form  and  order 
of  words  in  agreements,  and  would  not 
regard  the  intention  of  the  parties  when 
it  was  expressed  in  other  words  of  sub- 
stance, but  would  rather  apply  the  in- 
tention of  the  ])arties  to  the  order  and 
form  of  words  than  the  words  to  the  in- 
tention of  the  parties,  such  law  would 
be  more  full  of  form  than  of  substance. 
But  our  law,  which  is  the  most  reason- 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    23 

agreement  between  the  parties  on  which  an  action  of  cove- 
nant may  be  maintained,  (a)  And  the  recital  in  a  deed  of 
a  previous  agreement  is  equivalent  to  a  confirmation  and 
renewal  of  the  agreement,  (b)  And  words  of  proviso  and 
condition  will  be  construed  into  words  of  covenant,  when 
such  is  the  apparent  intention  and  meaning  of  the  parties,  (c) 
And  even  words  of  reservation  and  exception  in  a  lease  have 
been  held  to  operate  as  a  grant  of  a  right,  [d)  So  a  license 
may  have  effect  as  a  grant  of  an  incorporeal  hereditament,  if 
it  be  sealed  and  delivered,  and  authorizes  the  party  to  whom 
it  is  made  to  go  on  the  licensor's  land,  and  make  some  use 
of  the  land  to  his  own  profit.  Not  so  if  it  be  only  a  license 
to  do  some  particular  act,  as  to  hunt  in  a  man's  park.  The 
distinction  between  these  is  not  always  obvious ;  and  the 
same  license  may  operate  as  a  grant  as  to  some  things,  and 
as  a  mere  license  as  to  other  things,  (e) 


able  law  upon  earth,  regards  the  effect 
and  substance  of  words  more  than  the 
form  of  them,  and  takes  the  substance 
of  words  to  imply  the  form  thereof,  ra- 
ther than  that  the  intent  of  the  parties 
should  be  void." 

(o)  Severn  v.  Clerk,  2  Leon.  122. 

(i)  Barfoot  y.  Freswell,  3  Keb.  465; 
Saltoun  V.  Houstoun,  1  Bhig.  4.33; 
Sampson  v.  Easterby,  9  B.  &  Cr. 
505. 

(c)  Clapham  v.  Moyle,  1  Lev.  155,  1 
Keb.  842;  Shop.  Touch.  122;  Haff  v. 
Nickerson,  27  Maine,  106.  "  Where 
the  language  of  an  agreement  can  be 
resolved  into  a  covenant,  the  judicial 
inclination  is  so  to  construe  it ;  and 
hence  it  has  resulted  that  certain  fea- 
tures have  ever  been  held  essential  to 
the  constitution  of  a  condition.  In  the 
absence  of  any  of  these  it  is  not  permit- 
ted to  work  the  destructive  effect  the 
law  otherwise  attributes  to  it."  Per 
Bell,  J,  in  Paschall  v.  Passmore,  15 
Peim.  St.  295,  307. 

(d)  Thus,  in  Wickham  v.  Hawker,  7 
M.  &  W.  63,  A.  and  B.  conveyed  to  D. 
and  his  heirs  certain  lands,  excepting 
and  reserving  to  A.,  B.,  and  C,  their 
heirs  and  assigns,  liberty  to  come  into 
and  upon  the  lands,  and  there  to  hawk, 
hunt,  fi.-^h,  and  fowl :  Ilild,  that  this  was 
not  in  law  a  reservation  properly  so 
Called,  but  a  new  grant  by  D.  (who  exe- 


cuted the  deeed)  of  the  liberty  therein 
mentioned,  and  therefore  that  it  might 
inure  in  fiivor  of  C.  and  his  heirs,  al- 
tliough  he  was  not  a  party  to  the  deed. 
See  also  Doe  d.  Douglas  v.  Lock,  2  Ad. 
&  El.  705,  743. 

(e)  Wood  V.  Leadbitter,  13  M.  &  W. 
845;  Woodward  v.  Seely,  11  111.  157; 
Cook  V.  Stearns,  11  Mass.  533.  The 
distinction  between  a  license  which  is 
coupled  with  a  grant,  and  a  license 
which  operates  merely  as  a  license,  is 
admirably  stated  by  Lord  Chief  Justice 
Vaiighan,  in  Thomas  v  Sorrell,  Vaugh. 
330,  351.  "A  dispensation  or  license," 
says  he,  "properly  passeth  no  interest, 
nor  alters  or  transfers  property  in  any 
thing,  but  only  makes  an  action  lawful, 
wliich  without  it  bad  been  unlawful ;  as 
a  license  to  go  beyond  the  seas,  to  bunt 
in  a  man's  park,  to  come  into  iiis  house, 
are  only  actions  which,  without  license, 
had  been  unlawful.  But  a  license  to 
hunt  in  a  man's  park,  and  carry  away 
the  deer  killed  to  his  own  use  ;  to  cut 
down  a  tree  in  a  man's  ground,  and  to 
carry  it  away  the  next  day  after  to  his 
own  use,  are  licenses  as  to  the  acts  of 
hunting  and  cutting  down  the  tree ;  but 
as  to  the  carrying  away  of  the  deer 
killed,  and  tree  cut  down,  they  are 
grants.  So  to  license  a  man  to  eat 
my  meat,  or  to  fire  the  wood  in  my 
chimney  to  warm  him  by,  as  to  the  ac- 


24  THE  LAW  OF  CONTRACTS.  [PART  II. 

Even  a  bond  may  be  made  without  the  words  "  held  and 
firmly  obliged,"  although  they  are  technical  and  usual.  Any 
writing  under  seal  which  acknowledges  a  debt,  or  indicates 
that  the  maker  intends  to  be  bound  to  the  payment  of  a  de- 
finite sum  of  money,  would  be  construed  as  a  bond.  (/) 

A  question,  to  which  we  have  already  alluded,  whether 
parties  have  by  a  certain  instrument  made  a  lease,  or  only 
an  agreement  for  a  future  lease,  sometimes  presents  very 
considerable  difFiculty.  There  do  not  seem  to  be  any  fixed 
and  precise  rules  which  will  always  suffice  to  decide  this 
question.  Indeed,  each  case  must  be  determined  upon  its 
own  merits ;  and  little  more  can  be  said  by  way  of  rule,  than 
that  wherever  the  obvious  and  natural  interpretation  of  the 
words  used  would  indicate  the  intention  of  the  party  actually 
in  possession  to  divest  himself  thereof  forthwith,  in  favor  of 
the  other  who  is  to  come  into  possession  under  him  for  a  defi- 
nite time,  these  words  will  constitute  an  actual  lease  for  years, 
although  the  words  used  may  be  more  proper  to  a  release  or 
covenant,  or  to  an  agreement  for  a  subsequent  lease.  But  if 
the  whole  instrument,  fairly  considered,  indicates  that  it  is 
only  the  purpose  and  agreement  of  the  parties  hereafter  to 
make  such  a  lease,  then  it  must  be  construed  as  only  such 
agreement,  although  some  of  the  language  might  indicate  a 
present  lease.  («■) 

tions  of  eating,  firing  my  wood,  and  effectually  as  if  the  most  proper  and 

warming  him,   they   are   licenses ;   but  pertinent  words  had  been  made  use  of 

it   is   consequent    necessarily   to   those  for  that  purpose ;  and  on  the  contrary, 

actions  that  my  property  be  destroyed  if  the  most  proper  and  authentic  form 

in   the  meat   eaten,   and   in  the  wood  of  words,  whereby  to  describe  and  pass 

burnt,  so  as  in  some  cases  by  conse-  a  present  lease  for  years,  are  made  use 

quent  and  not  directly,  and  as  its  effect,  of,  yet  if  upon  the  whole  deed  there  ap- 

a  dispensation  or  license  may  destroy  pears  no  such  intent,  liut  that  they  are 

and  alter  property."  only  preparatory  and  relative  to  a  fu- 

(/)  IJodson   V.   Kayes,   Yelv.    193  ;  tare  lease  to  be  made,  tlic  law  will  ra- 

Core's  case,  Dyer,  20  a.  thcr  do  violence  to  the  words  than  break 

(//)  "  It  may  be  laid  down  for  a  rule,"  through  the  intent  of  the  parties  :  for  a 

says  Lord   Cliicf  Baron    Gilbert,  "  tliat  lease  for  years  being  no  other  than  a 

wliatevcr  words  are  sufficient  to  cxi)lain  contract  for  the  possession  and  profits 

the  intent  of  tlie  parties,  that  the  one  of  the  lands  on  the  one  side,  and  a  rc- 

shall  devest  himself  of  the  possession,  compense  of  rent  or  other  income  on 

and  the  other  come  into  it  for  sucli  a  the  otiicr,  if  the  words  made  use  of  arc 

determinate  time,  such  words,  whether  sufficient  to  prove  such  a  contract,  in 

they  run  in  the  form  of  a  license,  cove-  what  form  soever  they  arc  introduced, 

nant,  or  agreement,  are  of  themselves  or  however  variously  a})plicablc,  the  law 

sufficient,  and  will  in   construction   of  calls  in  the  intent  of  the  parties,  and 

law   amount  to  a  lease  for  years   as  models  and  governs  the  words  accord- 


CII.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.  25 

All  legal  instruments  should  be  grammatically  written, 
and  should  be  construed  according  to  the  rules  of  grammar. 
But  this  is  not  an  absolute  rule  of  law.  On  the  contrary,  it 
is  so  far  immaterial  in  what  part  of  an  instrument  any 
clause  is  written,  that  it  will  be  read  as  of  any  place  and 
with  any  context,  and  if  necessary,  transposed,  in  order  to 
give  effect  to  the  certain  meaning  and  purpose  of  the  par- 
ties. (A)  Still  this  will  be  done  only  when  their  certain  and 
evident  intent  requires  it.  Inaccuracy  or  confusion  in  the 
arrangement  of  the  parts  and  clauses  of  an  instrument  is 
therefore  always  dangerous,  because  the  intent  may  in  this 
way  be  made  so  uncertain  as  not  to  admit  of  a  remedy  by 
construction,  (i)  Generally  all  relative  words  are  read  as 
referring  to  the  nearest  antecedent,  (j)  But  this  rule  of 
grammar  is  not  a  rule  of  law,  where  the  whole  instrument 
shows  plainly  that  a  reference  was  intended  to  an  earlier 
antecedent.  (^•) 


ingly."  Bac.  Abr.  Tit.  Leases,  (K). 
See  also,  for  a  full  discussion  of  this 
subject  and  au  analysis  of  the  cases, 
Piatt  on  Leases,  Pt.  3,  ch.  4,  sec.  3  ; 
Taylor's  Landlord  and  Tenant,  §  37,  et 
seq. 

(h)  Per  Buller,  J.,  in  Duke  of  North- 
umberland V.  Errington,  5  T.  K.  526. 
Thus,  if  a  man  in  the  month  of  Febru- 
ary make  a  lease  for  years,  reserving  a 
yearly  rent  payable  at  the  feasts  of  St. 
Michael  the  Archangel,  [Sept.  29]  and 
the  Annunciation  of  our  Lady,  [March 
25]  during  the  term,  the  law  shall  make 
transposition  of  the  feasts,  viz.,  at  the 
feasts  of  tlie  Annunciation  and  Saint 
Michael  the  Archangel,  that  the  rent 
may  be  paid  yearly  during  the  term. 
Co.  Litt.  217  b.  See  also  1  Jarman  on 
Wills,  437,  ct  seq. 

(i)  "Note  reader,"  saith  Lord  Coke, 
"although  7nala  grammatica  non  vitiat 
instrumenta,  yet  in  expositione  instrumen- 
torum  mala  grammatica,  quod  fieri  possit, 
vitanda  est."     Finch's  case,  6  Rep.  39. 

(  /)  Com.  Dig.  Tit.  Parols,  (A.  14)  ; 
Jenk.  Cent.  180;  Bold  v.  Molineux, 
Dyer,  14  b;  Baring  v.  Christie,  5  East, 
398;  Rex  r.  Inhabitants  of  St.  Mary's, 
1  B.  &  Aid.  327. 

{k)  Guier's  case.  Dyer,  46  b ;  Car- 
bonel  u.  Davies,  1  Strange,  394;  Stani- 

VOL.  II.  3 


land  V.  Hopkins,  9  M.  &  W.  178,  192  ; 
Gray  y.  Clark,  11  Verm.  583.  Where 
A.  demises  to  B.  for  the  term  of  his  na- 
tural life,  the  demise  is,  prima  facie,  for 
the  life  of  B.  But  where  A.  demised 
to  B.,  his  executors  and  administrators, 
for  the  term  of  his  natural  life,  and  the 
lease  contained  a  covenant  by  A.  for 
the  quiet  enjoyment  of  the  premises  by 
B.,  his  executors,  &c.,  during  the  natu- 
ral life  of  A.,  it  was  held  that  the  word 
"  his "  in  the  demising  clause  must  be 
referred  to  A.,  the  grantor,  and  not  to 
B.,  though  his  name  was  the  last  ante- 
cedent. Doe  V.  Dodd,  5  B.  &  Ad.  689. 
In  scire  fiicias  against  bail,  the  notice  to 
the  defendant  was  dated  on  the  3d  day 
of  October,  1842,  and  stated  that  the 
execution  was  returnable  on  the  3d 
Tuesday  of  October  next.  Held,  that 
the  word  "  next "  referred  to  the  3d 
Tuesday  of  the  month,  and  not  to  the 
month,  and  that  it  was  sufficient.  Net- 
tleton  V.  Billings,  13  New  Hamp.  446. 
See  Osgood  v.  Hutchins,  6  Id.  374  ; 
Prescot  V. ,  Cro.  Jac.  646  ;  Buck- 
ley V.  Guildbank,  Id.  678  ;  Bunn  v. 
Thomas,  2  Johns.  190;  Tompkins  v. 
Corwin,  9  Cow.  255.  The  rule  is,  ad 
proximum  antecedens  fiat  relatio,  si  senten- 
tia  non  impediat.  Bold  v.  Molineux, 
Dyer,  14  b. 


26 


THE   LAW    OF   CONTRACTS. 


[part  II. 


So,  as  a  general  proposition,  where  clauses  are  repugnant, 
and  incompatible,  the  earlier  prevails  in  deeds  and  other  in- 
struments inter  vivos,  if  the  inconsistency  be  not  so  great  as 
to  avoid  the  instrument  for  uncertainty.  [1)  But  in  the  con- 
struction of  wills,  it  has  been  said  that  the  latter  clause  pre- 
vails, on  the  ground  that  it  is  presumed  to  be  a  subsequent 
thought  or  purpose  of  the  testator,  and  therefore  to  express 
his  last  will,  (ni) 

An  inaccurate  description,  and   even  a  wrong  name  of  a 


(I)  Shep.  Touch.  88  ;  Cother  v.  Mer- 
rick, Hardr.  94:  Carter  v.  Kungstead, 
Owen,  84  ;  Doe  'v.  Biggs,  2  Taunt.  109. 
In  the  body  of  a  deed  of  settlement  were 
these  words:  —  "£1,000  sterling,  law- 
ful money  of  Ireland."  The  Vicc- 
Chancellor,  in  giving  judgment  in  the 
case,  said :  —  "  It  being  then  impossible 
to  affix  a  meaning  to  the  words,  'ster- 
ling lawful  money  of  Ireland,'  taken 
altogether,  I  must  deal  with  them  ac- 
cording to  the  rule  of  law  as  to  constru- 
ing a  deed,  which  is,  that  if  you  find 
the  first  words  have  a  clear  meaning, 
but  those  that  follow  are  inconsistent 
with  them,  to  reject  the  latter."  Cope 
V.  Cope,  15  Sim.  118.  See  White  r. 
Hancock,  2  C.  B.  830;  Hardman  v. 
Ilardman,  Cro.  Eliz.  886  ;  Youde  r. 
Jones,  13  M.  &  W.  524,  534.  If  any 
thing  be  granted  generally,  and  there 
follow  restrictive  words,  which  go  to  de- 
stroy the  grant,  they  arc  rejected  as 
being  repugnant  to  that  which  is  first 
granted.  See  Stukeley  v.  Butler,  Hob. 
168,  172,  173,  Moore,  880.  Not  so, 
however,  where  the  words  that  follow 
are  only  explanatory,  and  are  not  re- 
pugnant to  the  grant ;  as  in  case  of  a 
feoffment  of  two  acres,  habendum  the 
one  in  fee,  and  the  other  in  tail,  the  ha- 
hendum  only  explains  the  manner  of 
taking,  and  does  not  restrain  the  gift. 
Jackson  v.  Ireland,  3  Wend.  99;  23 
Am.  Jur.  277,  278.  Where  the  condi- 
tion of  a  bond  for  the  payment  of  mo- 
ney is,  that  the  bond  shall  l)e  void  if 
the  money  is  not  paid,  it  is  held  that  the 
condition  is  void  for  repugnancy.  Mills 
r.  Wright.  1  Freem.  247  ;  S.  C.  vom. 
Wells  V.  Wright,  2  Mod.  285;  Wells 
V.  Tregusan,  2  Salk.  463,  11  Mod.  191 ; 
Vernon  v.  Alsop,  1  Lev.  77,  Sid.  105  ; 
Gully  w.  Gully,  1  Hawks,  20;  Stockton 
V.  Turner,  7  J.  J.  Marsh.  192.     In  39 


H.  6,  10  a,  pi.  15,  it  is  said  by  Ltltletoti 
to  have  been  adjudged  that  such  a  con- 
dition was  good,  and  that  a  plea  to  an 
action  on  the  bond,  that  tiie  defendant 
had  not  paid  the  money,  was  a  good 
bar.  And  Prisot  affirmed  the  case,  and 
said  that  he  was  of  counsel  iu  the  mat- 
ter when  he  was  sergeant.  But  that 
decision  cannot  now  be  considered  as 
law.  Where,  however,  the  payee  of  a 
note,  at  the  time  it  was  signed  by  the 
makers,  and  as  a  part  of  the  same  trans- 
action, indorsed  thereon  a  promise  "  not 
to  compel  payment  thereof,  but  to  re- 
ceive the  amount  when  convenient  for 
the  promisors  to  pay  it,"  it  was  held 
that  the  indorsement  must  be  taken  as 
part  of  the  instrument,  and  that  the 
payee  never  could  maintain  an  action 
thereon.  Barnard  !».  Gushing,  4  Mete. 
230.  It  has  been  laid  down,  that  where 
A.  grants  land  to  B.,  and  afterwards  in 
the  same  deed  he  grants  the  same  land 
to  C,  the  grantee  first  named  takes  the 
whole  land.  Jenk.  Cent.  256.  If  the 
inconsistency  between  parts  of  an  instru- 
ment is  such  as  to  render  its  meaning 
wholly  uncertain  and  insensible,  it  will 
bo  void.  Doe  v.  Fleming,  5  Tyrw. 
1013. 

[m)  Shep.  Touch.  88;  Co.  Litt.  112 
b  ;  Paramour  v.  Yardley,  Plowd.  541  ; 
Doc  V.  Biggs,  2  Taunt.  109  ;  Constan- 
tine  V.  Constantino,  6  Yes.  100 ;  Sher- 
ratt  V.  Bentley,  2  My.  &  K.  149;  1 
.Tarm.  on  Wills,  411.  "  If  I  devise  my 
land  to  J.  S.,  and  afterwards  by  the 
same  will  I  devise  it  to  J.  D.,  now  J.  S. 
shall  have  nothing,  because  it  was  my 
last  will  tliat  J.  D.  should  have  it." 
Per  Aiidcrson,  C  J.,  in  Carter  v.  Kung- 
stead, Owen,  84.  But  sec,  as  to  this 
doctrine,  Paramour  v.  Yardley,  Plowd. 
541,  n.  ((/);  Co.  Litt.  112  b,  n.  (1):  23 
Am.  Jur.  277,  278. 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         27 

person,  will  not  necessarily  defeat  an  instrument.  But  it  is 
said  that  an  error  like  this  cannot  be  corrected  by  construc- 
tion, unless  there  is  enough  beside  in  the  instrument  to  iden- 
tify the  person,  and  thus  to  supply  the  means  of  making  the 
correction.  That  is,  taking  the  whole  instrument  together, 
there  must  be  a  reasonable  certainty  as  to  the  person.  It  is 
also  said,  that  only  those  cases  fall  within  the  rule  in  which 
the  description  so  far  as  it  is  false  applies  to  no  person,  and 
so  far  as  it  is  true  applies  only  to  one.  But  even  if  the  name 
or  description,  where  erroneous,  apply  to  a  wrong  person,  we 
think  the  law  would  permit  correction  of  the  error  by  con- 
struction, where  the  instrument,  as  a  whole,  showed  certainly 
that  it  was  an  error,  and  also  showed  with  equal  certainty 
how  the  error  might  and  should  be  corrected,  (w) 

The  law,  as  we  have  already  had  occasion  to  say  in  refer- 
ence to  various  topics,  frequently  supplies  by  its  implications 
the  want  of  express  agreements  between  the  parties.  But  it 
never  overcomes  by  its  implications  the  express  provisions 
of  parties,  (o)  If  these  are  illegal,  the  law  avoids  them.  If 
they  are  legal,  it  yields  to  them,  and  does  not  put  in  their 
stead  what  it  would  have  put  by  implication  if  the  parties 
had  been  silent.  The  general  ground  of  a  legal  implication 
is,  that  the  parties  to  the  contract  would  have  expressed  that 
which  the  law  implies,  had  they  thought  of  it,  or  had  they 
not  supposed  it  was  unnecessary  to  speak  of  it  because  the 
law  provided  for  it.  But  where  the  parties  do  themselves 
make  express  provision,  the  reason  of  the  implication  fails. 
If  the  parties  expressly  provided  not  any  thing  different,  but 
the  very  same  thing  which  the  law  would  have  implied,  now 
this  provision  may  be  regarded  as  made  twice ;  by  the  par- 
ties and  by  the  law.  And  as  one  of  these  is  surplusage, 
that  made  by  the  parties  is  deemed  to  be  so ;  and  hence  is 
derived  another  rule  of  construction,  to  wit,  that  the  expres- 
sion of  those  things  which  the  law  implies  works  nothing,  [p) 

(n)  See  Broom's  Legal  Maxims,  2d  (p)  Therefore,   if   the  king  make  a 

ed.  p.  490.  et  seq.     We  shall  consider  lease  for  years,  rendering  a  rent  payable 

this  subject  more  fully  hereafter.  at  his  receipt  at  Westminster,  and  grant 

(o)  Expressum  fucit    cessare    tadtum.  the   reversion   to  another,  the  grantee 

Co.  Litt.  210  a;  Goodall's  case,  5  Hep.  shall  demand  the  rent  upon  the  land, 

97.  for  the  law,  without  express  words  im- 


28  THE   LAW    OF   CONTRACTS.  [PART  II. 

If,  however,  there  be  many  things  of  the  same  class  or 
kind,  the  expression  of  one  or  more  of  them  implies  the  ex- 
clusion of  all  not  expressed  ;  and  this  even  if  the  law  would 
have  implied  all,  if  none  had  been  enumerated.  (5-)  It  fol- 
lows, therefore,  that  implied  covenants  are  controlled  and  re- 
strained within  the  limits  of  express  covenants.  Thus,  in  a 
lease,  the  word  "  demise  "  raises  by  legal  implication  a  cove- 
nant both  of  title  in  the  lessor  and  of  quiet  enjoyment  by  the 
lessee.  But  if  with  the  word  "  demise  "  there  is  an  express 
covenant  for  quiet  enjoyment,  there  is  then  no  implied  cove- 
nant for  title,  (r)  So  a  mortgage  by  law  passes  all  the  fix- 
tures of  shops,  foundries,  and  the  like,  on  the  land  mort- 
gaged ;  but  if  the  instrument  enumerates  a  part,  without 
words  distinctly  referring  to  the  residue,  or  requiring  a  con- 
struction which  shall  embrace  the  residue,  no  fixtures  pass 
but  those  enumerated,  (s)  So  where  in  a  charter-party  the 
shipper  covenanted  to  pay  freight  for  goods  "  delivered  at 
A.,"  and  the  ship  was  wrecked  at  B.,  and  the  defendant  there 
accepted  his  goods,  he  was  still  held  not  bound  to  pay 
freight  pro  rata  itineris  ;  (t)  although  he  would,  under  a  com- 
mon charter-party  or  bill  of  lading,  be  bound  to  pay  freight 
for  any  part  of  the  transit  performed,  if  at  the  end  of  that 
part  he  accepted  the  goods,  (w) 

Instruments  are  often  used  which  are  in  part  printed  and  in 
part  written ;  that  is,  they  are  printed  with  blanks,  which  are 
afterwards  filled  up  ;  and  the  question  may  occur,  to  which 
a  preference  should  be  given.  The  general  answer  is,  to  the 
written  part.  What  is  printed  is  intended  to  apply  to  large 
classes  of  contracts,  and  not  to  any  one  exclusively  ;  the 
blanks  are  left  purposely  that  the  special  statements  or  pro- 
visions should  be  inserted,  which  belong  to  this  contract  and 


plies  that  the  lessee  in  the  king's  case  v.  Inhabitants  of  Sedgley,  2  B.  &  Ad. 

must  pay  the  rent  at  the  king's  receipf ;  65. 

and  cxprrssio  eorum  (jucc  tacite  insunt  ni-         (r)  Noke's  case,  4  Rep.  80  b ;  Mcrril 

hil  operatur.     Boroughcs's  case,  4   Rep.  v.  Frame,  4  Taunt.  329  ;  Line  v.  Ste- 

72   b;   Co.   Litt.   201  b.     See  also  Co.  phen.son,  4  Ring.  N.  C.  678,  .5  Id.  183. 
Litt  191  a;  Ives's  case,  5  Rep.  11.  (s)  Hare  r.  Ilorton,  ,'5  B.  &  Ad.  715. 

(9)  This   is   in   accordance   with  the         (/)  Cook  d.  .Jennings,  7  T.  R.  381. 
maxim,  expressio  tinius  est  exclusio  alte-         (u)  Luke  v.  Lyde,  2  Burr.  882;  Mit- 

rius.     Co.  Litt.  210  a.     See  also  Hare  chell  z^.  Darthez,  2  Bing.  N.  C.  555. 
V.  Horton,  5  B.  &  Ad.  715  ;  The  King 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         29 

not  to  others,  and  thus  discriminate  this  from  others.  And 
it  is  reasonable  to  suppose  that  the  attention  of  the  parties 
was  more  closely  given  to  those  phrases  which  they  them- 
selves selected,  and  which  express  the  especial  particulars  of 
their  own  contract,  than  to  those  more  general  expressions 
which  belong  to  all  contracts  of  this  class,  (v) 


SECTION  IV. 

ENTIRETY   OF   CONTRACTS. 

The  question  whether  a  contract  is  entire  or  separable  is 
often  of  great  importance.  Any  contract  may  consist  of 
many  parts ;  and  these  may  be  considered  as  parts  of  one 
whole,  or  as  so  many  distinct  contracts,  entered  into  at  one 
time,  and  expressed  in  the  same  instrument,  but  not  thereby 
made  one  contract.  No  precise  rule  can  be  given  by  which 
this  question  in  a  given  case  may  be  settled.  Like  most 
other  questions  of  construction,  it  depends  upon  the  inten- 
tion of  the  parties,  and  this  must  be  discovered  in  each  case 
by  considering  the  language  employed  and  the  subject-mat- 
ter of  the  contract. 

If  the  part  to  be  performed  by  one  party  consists  of  seve- 
ral distinct  and  separate  items,  and  the  price  to  be  paid  by 
the  other  is  apportioned  to  each  item  to  be  performed,  or  is 
left  to  be  implied  by  law,  such  a  contract  will  generally  be 
held  to  be  severable,  (w)     And  the  same  rule  holds  where 

(v)  Robertson  v.  Trench,  4  East,  130,  possession,  he  was  evicted  from  the 
136  ;  Alsagcr  v.  St.  Katharine's  Dock  smaller  parcel,  in  consequence  of  a  de- 
Company,  14  M.  &  W.  794  ;  per  feet  in  the  title  derived  under  the  pur- 
Oakky,  C.  J.,  in  Weisser  v.  Maitland,  chase,  and  thereupon  brought  an  action 
3  Sandf.  318.  for  money  had  and  received  to  recover 

(w)  This  point  is  well  illustrated  by  back  the  £300,  at  the  same  time  refus- 

the  case  of  Johnson  v.  Johnson,  3  B.  &  ing  to  give  up  the  parcel  of  land  for 

P.  162.     In   that  case  the  plaintiff  had  which  £700  had  been  paid.     And  the 

purchased  from  the  same  persons  two  court  held  that  he  was  entitled  to  reco- 

parcels  of  real  estate,  the  one  for  £700,  ver.     Lord  Ahanley,  in  delivering  the 

the  other  for  £300,  and  had  taken  one  judgment   of  the   court,   said:  —  "My 

conveyance  for    both.      After    having  difficulty  has  been,  how  far  the  agree- 

paid  the  purchase-money  and  taken  ment  is  to  be  considered  as  one  con- 
3* 


30 


THE   LAW   OF   CONTRACTS. 


[part  n. 


the  price  to  be  paid  is  clearly  and  distinctly  apportioned  to 
different  parts  of  what  is  to  be  performed,  although  the  latter 
is  in  its  nature  single  and  entire,  {x)     But  the  mere  fact  that 


tract  for  the  purchase  of  both  sets  of 
premises,  and  how  far  the  party  can 
recover  so  much  as  he  has  paid  by  way 
of  consideration  for  the  part  of  which 
the  title  has  failed,  and  retain  the  other 
part  of  the  bargain.  This  for  a  time 
occasioned  doubts  in  my  mind ;  for  if 
the  latter  question  were  involved  in  this 
case  it  would  be  a  question  for  a  court 
of  equity.  If  the  question  were  how 
far  the  particular  part  of  which  the  title 
has  failed  formed  an  essential  ingredient 
of  the  bargain,  the  grossest  injustice 
would  ensue  if  a  party  were  suffered  in  a 
court  of  law  to  say  that  he  would  retain 
all  of  which  the  title  was  good,  and  reco- 
ver a  proportionable  part  of  the  purchase- 
money  for  the  rest.  Possibly  the  part 
which  he  retains  might  not  have  been 
sold,  unless  the  other  part  had  been 
taken  at  the  same  time  ;  and  ought  not 
to  be  valued  in  proportion  to  its  extent, 
but  according  to  the  various  circum- 
stances connected  with  it.  But  a  court 
of  equity  may  inquire  into  all  the  cir- 
cumstances, and  may  ascertain  how  far 
one  part  of  the  bargain  formed  a  mate- 
rial ground  for  the  rest,  and  may  award 
a  compensation  according  to  the  real 
state  of  the  transaction.  In  tliis  case, 
however,  no  such  question  arises  ;  for 
it  appears  to  me  that  although  both 
pieces  of  ground  were  bargained  for  at 
the  same  time,  we  must  consider  the 
bargain  as  consisting  of  two  distinct 
contracts ;  and  that  the  one  part  was 
sold  for  X300,  and  the  other  for  £700." 
And  see  to  the  same  point,  Mnyfield  v. 
Wadsley,  3  B.  &C.  357. —The  state- 
ment in  the  text,  that,  where  the  sub- 
ject of  the  contract  consists  of  several 
distinct  and  independent  items,  and  no 
express  agreement  is  made  as  to  the 
consideration  to  be  i)aid,  the  contract 
may  be  considered  as  severable,  is  well 
illustrated  by  the  case  of  llobinson  v. 
Green,  3  Mete.  150.  That  was  an  ac- 
tion of  assumpsit  to  recover  compensa- 
tion for  services  rendered  by  the  plain- 
tiff to  the  defendant  as  an  auctioneer, 
in  selling  seventy-six  lots  of  wood.  The 
plaintiff  was  a  licensed  auctioneer  for 
the  county  of  Middlesex.  Two  of  the 
lots  of  wood  sold  were  in  the  county  of 
Middlesex,  and  the  rest  were  in  the  coun- 


ty of  Suffolk.  The  defendant  contended 
that  the  claim  of  the  plaintiff  was  entire ; 
that  part  of  it  was  a  claim  for  services 
which  were  illegal,  in  selling  property 
out  of  his  county;  and  that  the  con- 
tract being  entire,  and  the  considera- 
tion, as  to  part  at  least,  illegal,  the  ac- 
tion could  not  be  maintained.  Sed  non 
allocatur,  for,  per  Shaw,  C.  J. :  —  "  The 
plaintiff  does  not  claim  on  an  entire 
contract.  The  sale  of  each  lot  is  a  dis- 
tinct contract.  The  plaintifi''s  claim 
for  a  compensation  arises  upon  each 
several  sale,  and  is  complete  on  such 
sale.  If  there  were  an  express  pro- 
mise to  pay  him  a  fixed  sum,  as  a  com- 
pensation for  the  entire  sale,  it  would 
have  presented  a  different  question. 
Where  an  entire  promise  is  made  on 
one  entire  consideration,  and  part  of 
that  consideration  is  illegal,  it  may 
avoid  the  entire  contract.  But  here  is 
no  evidence  of  a  promise  of  one  entire 
sum  for  the  whole  service.  It  is  the 
ordinary  case  of  an  auctioneer's  com- 
mission, which  accrues  upon  each  en- 
tire and  complete  sale.  We  do  not  see 
how  the  question  can  be  answered, 
which  was  put  in  the  argument,  namely, 
supposing  the  plaintiff  had  stopped 
after  selling  the  two  lots  lying  in  South 
Reading,  which  it  was  lawful  for  him  to 
sell,  would  he  not  have  been  entitled  to 
his  commission  ?  If  he  would,  we  do 
not  perceive  how  his  claim  can  be 
avoided,  by  showing  that  he  did  some- 
thing else  on  the  same  day,  wliich  was 
not  malum  in  se,  but  an  act  prohibited 
by  law,  on  considerations  of  public  po- 
licy. The  court  are  of  opinion  that  tiie 
plaintiff's  claim  for  a  quantum  meruit 
may  be  apportioned,  and  that  he  is  en- 
titled to  recover  for  his  services  in  the 
sale  of  the  two  lots."  And  see  Mavor  v. 
Pvue.  3  Bing.  285  ;  Perkins  v.  Hart,  11 
Wheat.  237,  251  ;  Withers  v.  Reynolds, 
2  B.  &  Ad.  882 ;  Sickels  v.  P.altison,  14 
Wend.  257  ;  McKnight  v.  Dunlop,  4 
Barb.  36,  47. —  For  the  law  applicable 
to  cases  where  projierty  is  purchased  in 
lots  at  auction  at  .separate  biddings,  see 
ante,  vol.  1,  p.  417. 

(r)  ThHs,  if  a  ship  be  built  upon  a 
special  contract,  and  it  is  part  of  the 
terms  of  that  contract  that  given  por- 


CII.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         31 

the  subject  of  the  contract  is  sold  by  weight  or  measure,  and 
the  value  is  ascertained  by  the  price  affixed  to  each  pound, 
or  yard,  or  bushel,  of  the  quantity  contracted  for,  will  not  be 
sufficient  to  render  the  contract  severable.  (//)  And  if  the 
consideration  to  be  paid  is  single  and  entire,  the  contract 


tions  of  the  price  shall  be  paid  accord- 
ing to  the  progress  of  the  work,  to  wit, 
part  when  the  keel  is  laid ;  part  when  at 
the  light  plank;  and  the  remainder 
when  the  ship  is  lannched,  there  arises 
a  separate  contract  for  eacli  instalment; 
and  therefore  when  the  keel  is  laid,  or 
any  other  part  of  the  ship  for  which  an 
instalment  is  to  be  paid  is  completed, 
an  action  lies  immediately  for  the  one 
party  to  recover  the  instalment,  and  the 
part  of  the  ship  so  completed  becomes 
the  property  of  the  other  party.  Woods 
V.  Russell,  5  B.  &  Aid.  942.  See  also 
Clarke  v.  Spence,  4  B  &  Ad.  448; 
Laidler  v.  Burlinson,  2  M.  &  W.  602  ; 
Cunningham  v.  Morrell,  10  Johns.  203. 
(y)  Clark  v.  Baker,  5  Mete.  452.  The 
plaintiff  in  this  case  purchased  of  the 
defendant  a  cargo  of  corn  on  board  a 
schooner  lying  in  Boston,  agreeing  to 
pay  76^  cents  per  bushel  for  the  yellow 
corn,  and  73^  cents  for  the  white  corn  ; 
the  defendant  warranting  it  to  to  be  of 
a  certain  quality.  The  quantity  of  corn 
was  not  known  at  the  time  of  the  pur- 
chase, but  it  afterwards  appeared  that 
there  were  between  2,000  and  3,000  bu- 
shels. The  plaintiff  paid  the  defendant 
$1,200  in  advance,  and  after  having  re- 
ceived enough  of  the  corn  to  amount,  at 
the  agreed  price,  to  $1,067.02,  refused 
to  receive  any  more,  on  the  ground  that 
the  remainder  was  not  such  as  the  car- 
go was  warranted  to  be.  This  action 
was  brought  to  recover  the  difference 
between  the  aforesaid  suras  of  $1,200 
and  $1 .067.02.  The  defendant  objected 
that  the  contract  was  entire,  and  that 
the  present  action  could  not  be  main- 
tained, without  proof  tiiat  the  plaintiff 
offered  to  return  the  corn  which  he  had 
accepted ;  and  this  objection  was  sus- 
tained. Hubbard,  J.,  said  :  —  "  The 
question  in  the  present  case  resolves  it- 
self into  this :  Was  there  one  bargain 
for  the  whole  cargo,  or  were  there  two 
distinct  contracts  for  the  yellow  and 
white  corn,  or  was  there  a  separate  and 
independent  bargain  for  each  bushel  of 
corn  contracted  for,  in  consequence  of 


which  the  receipt  of  one  or  more  bush- 
els of  the  warranted  quality  imposed 
no  duty  upon  the  plaintiff  to  retain  the 
residue  ?  And  we  are  of  opinion  that 
the  contract  was  an  entire  one.  The 
bargain  was  not  for  2,000  or  3,000  bush- 
els of  corn,  but  it  was  for  tlie  cargo  of 
the  schooner  Shylock,  be  the  quantity 
more  or  less  ;  a  cargo  known  to  consist 
of  two  different  kinds  of  corn  ;  and  the 
means  taken  to  ascertain  the  amount  to 
be  paid  were  in  the  usual  mode,  by 
agreeing  on  the  rate  per  bushel  for  the 
two  kinds,  and  take  the  whole.  .  .  . 
There  is  no  ground,  on  the  evidence  as 
rejjorted,  to  maintain  that  there  were 
two  contracts  for  the  distinct  kinds  of 
corn  ;  for  it  does  not  appear  but  that 
the  1,400  bushels  that  were  retained 
consisted  of  a  part  of  each.  So  that 
the  plaintiff,  to  support  his  position, 
must  contend,  as  he  has  contended,  that 
the  bargains  in  this  case  were  separate 
bargains  for  each  several  bushel  of  a 
given  quality,  and  for  a  distinct  price. 
But  this  separation  into  parts  so  mi- 
nute, of  a  contract  of  this  nature,  can 
never  be  admitted  ;  for  it  might  lead  to 
the  multiplication  of  suits  indefinitely,  in 
giving  a  distinct  right  of  action  for  every 
distinct  portion.  As  well  might  a  man 
who  sold  a  chest  of  tea  by  the  pound,  or 
a  piece  of  cloth  by  the  yard,  or  a  piece  of 
land  by  the  foot  or  by  the  acre,  con- 
tend that  each  pound,  yard,  foot,  or 
acre,  was  the  subject  of  a  distinct  con- 
tract, and  each  the  subject  of  a  separate 
action.''  So  in  Davis  v.  Maxwell,  12 
Mete.  286,  where  the  plaintiff  agreed 
with  the  defendant  to  work  on  the  farm 
of  the  latter  for  the  period  of  '■  seven 
months,  at  twelve  dollars  per  month," 
it  was  held  that  the  contract  was  entire ; 
that  eighty-four  dollars  were  to  be  paid 
at  tlie  end  of  seven  months,  and  not 
twelve  dollars  at  the  end  of  each  month ; 
and  that  the  plaintiff,  on  leaving  the 
defendant's  service  without  good  cause 
before  the  seven  months  expired,  was 
not  entitled  to  recover  any  thing  of  the 
defendant. 


32  THE   LAW   OF   CONTRACTS.  [PART  U. 

must  be  held  to  be  entire,  although  the  subject  of  the  con- 
tract may  consist  of  several  distinct  and  wholly  independent 
items,  (c) 


SECTION  V. 
APPORTIONMENT  OF   CONTRACTS. 

A  contract  is  said  to  be  apportionable  when  the  amount 
of  consideration  to  be  paid  by  the  one  party  depends  upon 
the  extent  of  performance  by  the  other.  The  question  of 
apportionment  must  be  carefully  distinguished  from  that  of 
entirety,  considered  in  the  last  section.  The  latter  must 
always  be  determined  before  the  former  can  properly  arise. 
For  the  question  of  apportionment  always  addresses  itself 
to  a  contract  which  has  already  been  ascertained  to  be  single 
and  entire. 

When  parties  enter  into  a  contract  by  which  the  amount 
to  be  performed  by  the  one,  and  the  consideration  to  be  paid 
by  the  other,  are  made   certain   and  fixed,  such  a  contract 

{z)  ]\Iiiier  V.  Bradley,  22  Pick.  457.  one  [instrument  of  conveyance,  yet  the 
In  this  case  the  defendant  put  up  at  contract,  for  sufficient  cause,  may  be 
auction  a  certain  cow  and  40U  pounds  rescinded  as  to  part,  and  the  price  paid 
of  hay,  i)oth  of  which  the  plaintiff  bid  recovered  back,  and  may  be  enforced  as 
off  for  SI  7,  which  he  paid  at  tlie  time,  to  the  residue.  But  this  cannot  projier- 
He  then  received  the  cow,  and  after-  ly  be  said  to  be  an  exception  to  the 
wards  demanded  the  hay,  which  was  rule ;  because  in  effect  there  is  a  sepa- 
refused  by  ihe  defendant,  who  had  used  rate  contract  for  each  separate  article. 
it.  This  action  was  brouj^ht  to  recover  This  subject  is  well  explained,  and  the 
back  the  value  of  the  hay.  The  de-  law  well  stated,  in  Johnson  r.  Johnson, 
fendant  objected  that  the  contract  was  3  B.  &  P.  162."  The  learned  judge 
entire;  that  the  plaintitr  could  not  re-  then  stated  that  case,  and  continued  :  — 
cover  back  the  price  paid,  or  any  por-  "  Had  the  plaintiff  bid  off  the  cow  at 
tion  of  it,  without  rescinding  the  whole  one  price,  and  the  hay  at  another,  al- 
contract.  and  that  this  could  not  be  though  he  had  taken  one  bill  of  sale  for 
done  witliout  returning  the  cow.  And  both,  it  would  have  come  within  the 
this  objection  was  sustained  by  the  principles  of  the  above  case.  But  such 
court.  Morton,  J .,  snid  :  —  '•  There  may  was  not  the  fact.  And  it  seems  to  us 
be  cases,  where  a  legal  contract  of  sale  very  clear  tliat  the  contract  was  entire  ; 
covering  several  articles  may  be  sever-  that  it  was  incapal)le  of  severance,  that 
ed,  60  that  the  purchaser  may  hold  it  could  not  be  enforced  in  i)art  and  re- 
some  of  the  articles  purchased,  and,  not  scinded  in  part;  and  tiiat  it  could  not 
receiving  others,  m<iy  recover  back  tlie  be  rescinded  without  ])la(ing  the  parties 
price  paid  for  them.  Where  a  number  in  slain  (/no."  See  further  on  the  sub- 
of  articles  ure  bought  at  the  same  time,  ject  of  entirety,  Jones  v.  Dunn,  3  W.  & 
and  a  separate  price  agreed  upon  for  S.  109. 
each,  although  they  are  all  included  in 


1 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         33 

cannot  be  apportioned.  Thus,  if  A.  and  B.  agree  together 
that  A.  shall  enter  into  the  service  of  B.,  and  continue  for 
one  year,  and  that  B.  shall  pay  him  therefor  the  sum  of  one 
hundred  dollars;  and  A.  enters  the  service  accordingly,  and 
continues  half  of  the  year,  and  then  leaves,  he  will  not  be 
entitled  to  recover  any  thing  on  the  contract,  (a)  This  is  an 
old  and  deep-rooted  principle  of  the  common  law,  and  though 
it  sometimes  has  the  appearance  of  harshness,  it  would  be 
difficult  to  contend  against  it  upon  principle.  We  have  fre- 
quently had  occasion  to  state  that  courts  of  justice  can  only 
carry  into  effect  such  contracts  as  parties  have  made.  They 
cannot  make  contracts  for  them,  or  alter  or  vary  those  made 
by  them.  And  it  would  seem  difficult  for  a  court,  without 
travelling  out  of  its  true  sphere,  to  say  that  because  B.  has 
agreed  to  pay  one  hundred  dollars  for  one  year's  service,  he  has 
therefore  agreed  to  pay  at  that  rate,  or  any  particular  sum,  for  a 
shorter  period.  In  other  words,  it  cannot  reasonably  be  pre- 
sumed that  the  parties  intended  that  the  amount  of  considera- 
tion to  be  paid  by  B.  should  depend  upon  the  amount  of  service 
rendered  by  A.,  when  both  of  these  were  definitely  fixed  by 
the  parties.  The  only  agreement  entered  into  by  B.  was  to 
pay  A.  the  sum  of  one  hundred  dollars,  when  the  latter 
should  have  served  him  one  year.  Therefore,  until  the  full 
year's  service  has  been  rendered,  the  casus  fcederis  does  not 
arise. 

It  is  to  be  borne  in  mind,  however,  that  this  is  only  a  rule 
of  construction,  founded  upon  the  intention  of  the  parties, 
and  not  a  rule  of  law  which  controls  intention.  Therefore, 
if  the  parties  wish  to  make  a  contract  which  shall  be  appor- 
tionable,  there  is  nothing  to  hinder  their  doing  so,  provided 
they  make  their  intention  sufficiently  manifest.  Thus,  if  A. 
and  B.  make  a  contract,  by  virtue  of  which  A.  is  to  enter 
into  the  service  of  B.,  at  the  rate  of  ten  dollars  per  month, 
and  continue  so  long  as  it  shall  be  agreeable  to  both  parties, 
such  contract  is  clearly  apportionable  ;  for  neither  the  extent 
of  service  nor  the  amount  of  consideration  is  fixed  by  the 


(a)  Ex  parte   Smyth,  1  Swanst.  337,     ed  this  point  in  our  first  vohime,  B.  3, 
and  n   («).     We  have  ah'eady  consider-    ch.  9,  sec.  1. 


34 


THE  LAW   OF   CONTRACTS. 


[part  II. 


contract,  but  only  a  certain  relation  and  proportion  between 
them.  And  contracts  have  been  held  apportionable  in  which 
the  service  to  be  performed  was  specified  and  fixed,  but  the 
consideration  to  be  paid  was  left  to  be  implied  by  law.  But 
this  cannot  be  laid  down  as  a  general  rule,  (b) 

We  have  seen  that  when  parties  make  a  contract  which 
is  not  apportionable,  no  part  of  the  consideration  can  be  re- 


{b)  Roberts  v.  Havelock,  3  B.  &  Ad. 
404.  In  this  case  a  ship  belonging  to 
the  defendant  having  come  into  port  in 
a  damaged  state,  the  pUiintift'  was  em- 
ployed and  nndertook  to  put  her  into 
thorough  repair.  Before  the  work  was 
completed,  a  dispute  arose  between  the 
parties,  and  the  plaintiff  refused  to  pro- 
ceed until  he  was  paid  for  the  work 
already  done,  and  for  which  this  action 
was  brought.  Tlie  defendant  objected, 
that  the  action  did  not  lie,  inasmuch  as 
the  plaintiff"  had  not  completed  his  con- 
tract, and  as  long  as  that  was  the  case, 
the  work  already  done  was  unavailable 
for  the  purpose  for  which  it  had  been 
required.  And  the  case  of  Sinclair  v. 
Bowles,  9  B.  &  Cr.  92,  in  which  A., 
having  undertaken  for  a  specific  sum  of 
money  to  repair  and  make  perfect  a 
given  article,  and  having  repaired  it  in 
part,  but  not  made  it  perfect,  it  was  held 
that  he  was  not  entitled  to  recover  for 
what  he  had  done,  was  cited  as  in  point. 
But  Lord  Tenterden  said  :  —  "I  have  no 
doubt  that  the  plaintiff  in  this  case  was 
entitled  to  recover.  In  Sinclair  v. 
Bowles  the  contract  was  to  do  a  specijic 
work  for  a  specijic  sum.  There  is  no- 
thing in  the  present  case  amounting  to 
a  contract  to  do  the  whole  repairs  and 
make  no  demand  till  ihey  are  com- 
pleted. The  plaintiff  was  entitled  to 
say  that  he  would  proceed  no  further 
with  the  repairs  till  he  was  paid  what 
was  already  due."  Mr.  Smitli,  in  his 
learned  note  to  Cutter  v.  Powell,  1 
Smith's  Lead.  Cas.  13,  having  stated 
this  case,  and  quoted  the  language  of 
Lord  Tenterden,  says  :  —  "  From  tliese 
words  it  may  be  thought  that  his  lord- 
ship's judgment  proceeded  on  the 
ground  that  the  performance  of  the 
whole  work  is  not  to  be  considered  a 
condition  precedent  to  the  payment  of 
any  part  of  the  price,  excepting  when  the 
sum  to  be  paid  and  the  work  to  be  done 
are  both  specified  (unless,  of  course,  in 


case  of  special  terms  in  the  agreement 
expressly  imposing  such  a  condition) ; 
and  certainly  good  reasons  may  be  al- 
leged in  favor  of  such  a  doctrine,  for 
when  the  price  to  be  paid  is  a  specific 
sum,  as  in  Sinclair  v.  Bowles,  it  is  clear 
that  the  court  and  jury  can  have  no 
right  to  apportion  that  which  the  par- 
ties themselves  have  treated  as  entire, 
and  to  say  that  it  shall  be  paid  in  in- 
stalments, contrary  to  the  agreement, 
instead  of  in  a  round  sum  as  provided 
by  the  agreement ;  but,  where  no  price 
is  specified,  this  difficulty  does  not 
arise,  and  perhaps  the  true  and  right 
presumption  is,  that  the  parties  intend- 
ed the  payment  to  keep  pace  with  the 
accrual  of  the  benefit  for  which  pay- 
ment is  to  be  made.  But  this,  of 
course,  can  only  be  when  the  consi- 
deration is  itself  of  an  apportionable 
nature,  for  it  is  easy  to  put  a  case  in 
which,  though  no  price  has  been  speci- 
fied, yet  the  consideration  is  of  so  indi- 
visible a  nature,  that  it  would  be  absurd 
to  say  that  one  part  should  be  paid  for 
before  the  remainder ;  as  where  a 
painter  agrees  to  draw  A.'s  likeness,  it 
would  be  absurd  to  require  A.  to  pay  a 
ratable  sum  on  account  when  half  the 
face  only  had  been  finished ;  it  is  ob- 
vious that  he  has  then  received  no  bene- 
fit, and  never  will  receive  any,  unless 
the  likeness  should  be  perfected.  There 
arc,  however,  cases,  that  for  instance 
of  Roberts  v.  Havelock,  in  which  the 
consideration  is  in  its  nature  apportion- 
able, and  there,  if  no  entire  sum  have 
been  agreed  on  as  the  price  of  the  entire 
benefit,  it  would  not  be  unjust  to  pre- 
sume that  the  intention  of  tiic  contract- 
ors was  that  the  remuneration  should 
keep  pace  with  the  consideration,  and 
be  recoverable  toties  rjuotics  by  action  on 
a  quantum  meruit.'''  See  also  Withers 
V.  Reynolds,  2  B.  &  Ad.  882 ;  Sickels 
V.  Pattison,  14  Wend.  257. 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    35 

covered  in  an  action  on  the  contract,  until  the  whole  of  that 
for  which  the  consideration  was  to  be  paid  is  performed. 
But  it  must  not  be  inferred  from  this  that  a  party  who  has 
performed  a  part  of  his  side  of  a  contract,  and  has  failed  to 
perform  the  residue,  is  in  all  cases  without  remedy.  For 
though  he  can  have  no  remedy  on  the  contract  as  originally 
made,  the  circumstances  may  be  such  that  the  law  will  raise 
a  new  contract,  and  give  him  a  remedy  on  a  qnantum  meruit. 

Thus,  if  one  party  is  prevented  from  fully  performing  his 
contract  by  the  fault  of  the  other  party,  it  is  clear  that  the 
party  thus  in  fault  cannot  be  allowed  to  take  advantage  of 
his  own  wrong,  and  screen  himself  from  payment  for  what 
has  been  done  under  the  contract.  The  law,  therefore,  will 
imply  a  promise  on  his  part  to  remunerate  the  other  party 
for  what  he  has  done  at  his  request ;  and  upon  this  promise 
an  action  may  be  brought,  (c) 

So  too  if  one  party,  without  the  fault  of  the  other,  fails  to 
perform  his  side  of  the  contract  in  such  a  manner  as  to  ena- 
ble him  to  sue  upon  it,  still  if  the  other  party  have  derived  a 
benefit  from  the  part  performed,  it  would  be  unjust  to  allow 
him  to  retain  that  without  paying  any  thing.  The  law, 
therefore,  implies  a  promise  on  his  part  to  pay  such  a  remu- 
neration as  the  benefit  conferred  upon  him  is  reasonably 
worth,  and  to  recover  that  quantum  of  remuneration  an 
action  of  indebitatus  assumpsit  is  maintainable,  [d) 

(c)  Planche  v.  Colburn,  8  Bing.  14;  niently  arranged  in   three   classes;  — 

Goodman    v.   Pocock,    15   Q.  B.    576;  those  arising  on  contracts  of  sale ;  those 

Hall  V.  Rupley,  10  Barr,  231  ;  Moulton  arising  on  contracts  to  do  some  specific 

V.   Trask,    9   Mete.    577  ;   Hoagland  v.  labor  upon   the  land  of  another,  as  to 

Moore,    2    Blackf.    167  ;    Bannister    v.  erect    buildings,    or    l)uild    roads   and 

Read,  1  Gilm.  92  ;  Selby  v.  Hutchinson,  bridges :  and   those  arising  upon  ordi- 

4   Id.  319;  Webster   v.  Enfield,   5  Id.  nary  contracts  for  service.    The  leading 

298;  Derby  v.  Johnson,  21  Verm.  17.  case  of  the  first  class  is  that  of  Oxen- 

So  too  if  a  special  action  on  the  case  is  dale  v.  Wetherell,  9  B.  &  Cr.  386.  That 

brought  against  the  party  in   fault  to  was  an  action  of  indebitatus  assumpsit 

recover  damages  for  not  being  permit-  to  recover  the  price  of  130  bushels  of 

ted  to  perform  the  contract,  a  reasona-  wheat  sold  and  delivered  by  the  plaia- 

ble   compensation  for  what    has   been  tiff  to  the  defendant,  at  8s.  per  bushel, 

performed  may  be  included  in  the  da-  The  defendant  gave  evidence  to  show 

mages.     Goodman  v.  Pocock,  15  Q.  B.  that  he  made  an  absolute  contract  for 

576;  Derby  w.  Johnson,  21  Verm.  18;  250  bushels,  and  contended  that  as  the 

Clark  v.  Marsiglia,  1  Denio,  317.  plaintiff  had  not  fully   performed   his 

{d)  Tlie  cases  bearing  upon  this  last  contract  he  was  not  entitled  to  recover 

proposition   are,  it  must  be  confessed,  any  thing.   But  Bayley,  J.,  before  whom 

very  conflicting.     They  may  be  conve-  the  cause  was  tried,  was  of  opinion  that, 


36 


THE  LAW   or   CONTRACTS. 


[part  II. 


SECTION  VI. 


OP  CONDITIONAL  CONTRACTS. 


It  is  sometimes  of  great  importance  to  determine  whether 
there  be  a  condition  in  a  contract  or  an  instrument.     If,  for 


as  the  defendant  had  not  returned  the 
130  bushels,  and  the  time  for  complet- 
ing the  contract  had  expired  before  the 
action  was  brouglit,  the  plaintift'  was 
entitled  to  recover  the  value  of  the  130 
bushels  which  had  been  delivered  to 
and  accepted  b}'  the  defendant.  A  ver- 
dict was  accordingly  found  for  the 
plaintiff,  with  liberty  to  the  defendant 
to  move  to  enter  a  nonsuit.  But  upon 
a  motion  to  that  effect  being  made, 
Lord  Tenterden  said  :  —  "If  the  rule 
contended  for  were  to  prevail,  it  would 
follow,  that  if  there  had  been  a  contract 
for  250  bushels  of  wheat,  and  249  had 
been  delivered  to  and  retained  by  the 
defendant,  tlie  vendor  could  never  re- 
cover for  the  249,  because  he  had  not 
delivered  the  whole."  Bayley,  J.  "  The 
defendant  having  retained  the  130  bush- 
els, after  the  time  for  completing  the 
contract  had  expired,  was  bound  by 
law  to  pay  for  the  same."  Parke,  J. 
"Where  tliere  is  an  entire  contract  to 
deliver  a  large  quantity  of  goods  con- 
sisting of  distinct  parcels,  within  a  spe- 
cified time,  and  the  seller  delivers  part, 
he  cannot,  before  tlie  expiration  of  that 
time,  bring  an  action  to  recover  the 
price  of  that  part  delivered,  because  tiic 
purchaser  may,  if  the  vendor  fail  to 
complete  his  contract,  return  the  part 
delivered.  But  if  he  retain  the  part 
delivered,  after  the  seller  has  failed  in 
performing  his  contract,  the  latter  may 
recover  the  value  of  the  goods  wliich  he 
has  so  delivered."  So  also  in  Kead  ». 
Rann,  10  B.  &  Cr.  439,  Parke,  J,,  said  : 
"  In  some  cases,  a  special  contract  not 
executed  may  give  rise  to  a  claim  in 
the  nature  of  a  quantum  meruit,  ex.  gr., 
where  a  special  contract  has  been  made 
for  goods,  and  goods  sent  not  accord- 
ing to  the  contrac  t  arc  retained  by  the 
party,  there  a  claim  fur  the  value  on 
a  quantum  vakhanl  may  be  supported. 
But  then  from  the  circumstances  a  new 


contract  may  be  implied."  And  see,  to 
the  same  effect,  Shipton  v.  Casson,  5  B. 
&  Cr.  378.  So  too  in  Massachusetts  it 
has  been  held,  that  if  the  vendee  of  a 
specific  quantity  of  goods  sold  under  an 
entire  contract,  receives  a  part  thereof, 
and  retain  it  after  the  vendor  has  re- 
fused to  deliver  the  residue,  this  is  a 
severance  of  the  entirety  of  the  con- 
tract, and  he  becomes  liable  to  the 
vendor  for  the  price  of  such  part.  Bow- 
ker  V.  Hoyt,  18  Pick.  555.  And  we  ap- 
prehend that  a  similar  rule  would  be 
adopted  by  a  majority  of  the  courts  in 
this  country.  But  in  New  York  the 
case  of  Oxendale  v-  Wetherell  has  been 
entirely  repudiated,  and  it  is  there  held 
that  the  vendor  in  such  a  case  is  not 
entitled  to  any  remedy.  Champlin  v. 
Rowley,  13  Wend.  258,  18  Id.  187  ; 
Mead  v.  Degolyer,  16  Wend.  632;  Mc- 
Knight  V.  Dunlop,  4  Barb.  36 ;  Paige  v. 
Ott,  5  Denio,  406.  And  so  also  in 
Ohio.  Witherow  v.  Witherow,  16  Ohio, 
238,  Read,  J.,  dissenting.  —  One  of  the 
most  important  cases  in  the  second 
class  is  Hay  ward  v.  Leonard,  7  Pick. 
181.  In  that  case  the  plaintiff  con- 
tracted in  writing  to  build  a  house  for 
the  defendant,  at  a  certain  time,  and  in 
a  certain  manner,  on  defendant's  land, 
and  afterwards  built  the  house  within 
the  time,  and  of  the  dimensions  agreed 
on,  but  in  workmanship  and  materials 
varying  from  the  contract.  The  de- 
fendant was  present  almost  every  day 
during  the  building,  and  had  an  oppor- 
tunity of  seeing  all  the  materials  and 
labor,  and  objected  at  times  to  parts  of 
the  materials  and  work,  but  continued 
to  give  directions  about  the  house,  and 
ordered  some  variations  from  the  con- 
tract. He  expressed  himself  satisfied 
with  a  part  of  the  work  from  time  to 
time,  though  professing  to  be  no  judge 
of  it.  Soon  after  the  house  was  done 
he  refused  to  accept  it,  but  the  plaintiflf 


en.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    37 

instance,  a  deed  contain  a  grant  on  condition,  then  if  there' 
be  a  breach  of  condition,  the  grant  is  void,  and  the   estate 


had  no  knowledge  that  he  intended  to 
refuse  it  till  after  it  was  finished.  It 
was  held  that  the  plaintiff  might  main- 
tain an  action  against  the  defendant  on 
a  quantum  meruit  for  his  labor,  and  on  a 
quantum  valebant  for  the  materials.  It 
may  be  gathered,  however,  from  the 
judgment  of  Parker,  C.  J.,  that  he  con- 
sidered that  one  of  two  things  must  be 
proved  in  order  to  entitle  the  plaintiff 
to  recover  ;  —  either  that  there  was  an 
honest  intention  to  go  by  the  contract, 
and  a  substantive  execution  of  it,  with 
only  some  comparatively  slight  devia- 
tions as  to  some  particulars  provided 
for  ;  or  that  there  was  an  assent  or  ac- 
ceptance, express  or  implied,  by  the 
party  with  whom  the  plaintiff  contract- 
ed. That  such  is  now  the  received  law, 
see  Smith  v.  Lowell,  8  Pick.  178;  Taft 
V.  Montague,  14  Mass.  282;  Olmstead 
r.  Beale,  l9  Pick.  528;  Snow  r.  Ware, 
13  Mctc.  42;  Hayden  v.  Madison,  7 
Greenl.  76 ;  Jennings  i\  Camp,  13 
Johns.  94  ;  Kettle  v.  Harvev,  21  Verm. 
301  ;  Burn  v.  Miller,  4  Taunt.  745  ; 
Chapel  V.  Hickes,  2  Cr.  &  M.  214; 
Thornton  r.  Place,  1  M.  &  Rob.  218. 
But  see  Ellis  v.  Hamlen,  3  Taunt.  52  ; 
Sinclair  v.  Bowles,  9  B.  &  Cr.  92  ;  Woot- 
en  V.  Eead,  2  S.  «&  M.  585 ;  Helm  v. 
Wilson,  4  Mis.  41.  —  AVe  are  not  aware 
that  there  are  any  cases  upon  contracts 
for  service  fully  sustaining  the  propo- 
sition in  the  text,  except  the  celebrated 
one  of  Britton  v.  Turner,  6  N.  H.  481, 
already  cited  by  us,  vol.  1,  p.  524,  note 
(p).  That  was  an  action  of  indebitatus 
assumpsit  for  work  and  labor  performed 
by  the  plaintiff  for  the  defendant,  from 
March  9,  1831,  to  December  27,  of  the 
same  year.  The  defendant  offered  evi- 
dence to  prove  that  the  work  was  done 
under  a  contract  to  work  for  one  year 
for  the  sum  of  one  hundred  dollars,  and 
that  the  plaintiff  left  his  service  without 
his  consent,  and  without  good  cause. 
The  learned  judge  instructed  the  jury, 
that  although  all  these  points  should  be 
made  out,  yet  the  plaintiff  was  entitled 
to  recover,  under  his  quantum  meruit 
count  as  much  as  the  labor  performed 
was  reasonably  worth.  And  this  in- 
struction was  held  to  be  correct.  Par- 
ker, C.  J.,  in  delivering  the  judgment  of 
the  court,  after  noticing  several  of  the 
cases  cited  above  in  the  second  class, 

VOL.  II.  4 


said  :  —  "  Those  cases  arc  not  to  be  dis- 
tinguished, in  principle,  from  the  pre- 
sent, unless  it  be  in  the  circumstance, 
that  wiiere  the  party  has  contracted  to 
furnish  materials,  and  do  certain  labor, 
as  to  build  a  house  in  a  specified  man- 
ner, if  it  is  not  done  according  to  the 
contract,  the  party  for  whom  it  is  built 
may  refuse  to  receive  it  —  elect  to  take 
no  benefit  from  what  has  been  perform- 
ed —  and  therefore  if  he  docs  receive  he 
shall  be  bound  to  pay  the  value ;  where- 
as in  a  contract  for  labor,  merely,  from 
day  to  day,  the  party  is  continually  re- 
ceiving the  benefit  of  the,  contract,  under 
an  expectation  that  it  will  be  fulfilled, 
and  cannot,  upon  the  breach  of  it,  have 
an  election  to  refuse  to  receive  what  has 
been  done,  and  thus  discharge  himself 
from  payment.  But  we  think  this  dif- 
ference in  the  nature  of  the  contracts 
does  not  justify  the  application  of  a 
different  rule  in  relation  to  them.  The 
party  who  contracts  for  labor  merely, 
for  a  certain  period,  does  so  with  full 
knowledge  that  he  must,  from  the  na- 
ture of  the  case,  be  accepting  part  per- 
formance from  day  to  day,  if  the  other 
party  commences  the  performance,  and 
with  knowledge  also  that  the  other 
party  may  eventually  fail  of  completing 
the  entire  term.  If  under  such  circum- 
stances he  actually  receives  a  benefit 
from  the  labor  performed,  over  and 
above  the  damage  occasioned  by  the 
failure  to  comjDlete,  there  is  as  much 
reason  why  he  should  pay  the  reason- 
able worth  of  what  has  thus  been  done 
for  his  benefit,  as  there  is  when  he  en- 
ters and  occupies  the  house  which  has 
been  built  for  him,  but  not  according  to 
the  stipulations  of  the  contract,  and 
which  he  perhaps  enters,  not  because  he 
is  satisfied  with  what  has  been  done, 
but  because  circumstances  compel  him 
to  accept  it  such  as  it  is,  that  he  should 
pay  for  the  value  of  the  house.  .  .  . 
If  the  party  who  has  contracted  to  re- 
ceive merchandise  takes  a  part  and  uses 
it,  in  expectation  that  the  whole  will  be 
delivered,  which  is  never  done,  there 
seems  to  be  no  greater  reason  that  he 
should  pay  for  what  he  has  received, 
than  there  is  that  the  party  who  has  re- 
ceived labor  in  part,  under  similar  cir- 
cumstances, should  pay  the  value  of 
what  has  been  done  for  his  benefit.    It 


38 


THE   LAW   OF   CONTRACTS. 


[part  II. 


may  never  vest,  or  may  be  forfeited.  A  condition  of  this 
sort  is  not  favored,  and  would  not  be  readily  implied,  (e) 
But  stipulations  or  agreements  may  be  implied,  upon  the 
breach  of  which  an  action   may  be  brought.     Mutual  con- 


is  said,  that  in  those  cases  where  the 
plaintiff  has  been  ])erniittecl  to  recover, 
there  was  an  acceptance  of  what  had 
been  done.  The  answer  is,  that  where 
the  contract  is  to  labor  from  day  to  day 
for  a  certain  period,  the  party  for  whom 
the  labor  is  done  in  truth  stipulates  to 
receive  it  from  day  to  day,  as  it  is  i)er- 
formed,  and  although  tlie  other  may 
not  eventually  do  all  he  has  contracted 
to  do,  there  has  been,  necessarily,  an 
acceptance  of  "what  has  been  done  in 
]nirsuancc  of  the  contract,  and  the  party 
must  have  understood  when  he  made 
the  contract  that  tliere  was  to  be  such 
acceptance.  If,  then,  the  party  stipu- 
lates in  the  outset  to  receive  part  per- 
formance from  time  to  time,  with  a 
knowledge  that  the  whole  may  not  be 
completed,  we  see  no  reason  why  he 
should  not  equally  be  holden  to  pay  for 
the  amount  of  value  received,  as  where 
he  afterwards  takes  the  benefit  of  what 
has  been  done,  with  a  knowledge  that 
the  whole  which  was  contracted  for  has 
not  been  performed.  In  neither  case  has 
the  contract  been  performed.  In  neither 
can  an  action  be  sustained  on  the  original 
contract.  In  both  the  party  has  assented 
to  receive  what  is  done.  The  only  dif- 
ference is,  that  in  the  one  case  the  as- 
sent is  prior,  with  a  knowledge  that  all 
may  not  be  performed,  in  tlie  other  it  is 
subsequent,  with  a  knowledge  tliat  tlie 
whole  has  not  been  accomplished.  We 
have  no  hesitation  in  holding  that  the 
same  rule  should  be  applied  to  both 
classes  of  cases,  especially  as  the  opera- 
tion of  tiie  rule  will  be  to  make  the 
party  who  has  failed  to  fulfil  his  con- 
tract, liable  to  such  amount  of  damages 
as  the  other  party  has  sustained,  instead 
of  subjecting  him  to  an  entire  loss  for 
a  partial  failure,  and  tiius  making  the 
amount  received  in  many  cases  wholly 
disproportionate  to  the  injury.  .  .  . 
We  liold,  then,  that  where  a  party  un- 
dertakes to  pay  upon  a  special  contract 
for  the  performance  of  labor,  or  the  fur- 
nishing of  materials,  he  is  not  to  be 
charged  upon  such  special  agreement 
until  the  money  is  earned  according  to 
the  terms  of  it,  and  where  the  parties 
have  made  an  express  contract,  the  law 


will  not  imply  and  raise  a  contract  dif- 
ferent from  that  which  the  parties  have 
entered  into,  except  upon  ,a4^^c  farther 
transaction  between  the  p^^ps.  But 
if,  where  a  contract  is  ni»4|Wof  such  a 
character,  a  party  actually  receives  la- 
bor, or  materials,  and  thereby  derives  a 
benefit  and  advantage,  over  and  above 
the  damage  which  has  resulted  from  the 
breach  of  the  contract  by  the  other 
party,  the  labor  actually  done,  and  the 
value  received,  furnish  a  new  considera- 
tion, and  the  law  tliereupon  raises  a 
promise  to  pay  to  the  extent  of  the  I'ca- 
sonablc  worth  of  such  excess.  This 
may  be  considered  as  making  a  new 
case,  one  not  within  the  original  agree- 
ment, and  the  party  is  entitled  to  '  re- 
cover on  his  new  case  for  the  work 
done,  not  as  agreed,  but  yet  accepted 
by  the  defendant.'  1  Dane's  Abr.  224." 
But  the  courts  of  other  States  have 
thus  far  shown  little  disposition  to 
adopt  the  views  of  the  learned  judge. 
Thus,  in  Eldridge  v.  Howe,  2  Gilm.  91, 
the  court  held  upon  a  similar  state  of 
facts  that  the  plaintiff  was  not  entitled 
to  recover.  And  Young,  J.,  said  :  — 
"  It  is  no  objection  to  say  that  the  de- 
fendant has  received  the  benefit  of  his 
labor,  this  being  a  case,  where,  from  its 
nature,  the  defendant  could  not  sepa- 
rate the  pi-oducts  of  his  labor  from  the 
general  concerns  of  his  farm,  and  ought 
not,  therefore,  to  be  responsible  to  any 
extent  whatever  for  not  doing  that 
which  was  impossible."  See  also  Mil- 
ler V.  Goddard,  34  Maine,  102;  01m- 
stead  V.  Bcale,  19  Pick.  529  ;  Davis  v. 
Maxwell,  12  Mete.  28G.  Se  also  ante, 
vol.  1,  p.  522,  n.  (/),  and  p.  52G,  n.  (q). 
—  Difficult  questions  frequently  arise 
in  the  classes  of  cases  considered  in  the 
present  note,  as  to  the  measure  of  da- 
mages, and  the  right  of  the  defendant 
to  have  deducted  from  the  amount 
otherwise  recoverable  the  damage  sus- 
tained by  him  in  consequence  of  the 
breach  of  the  contract.  These  ques- 
tions will  be  considered  under  their  ap- 
jiropriate  heads  in  the  subsequent  parts 
of  tlic  present  volume, 
(e)  See  ante,  p.  21,  n.  (c). 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         39 

tracts  sometimes  contain  a  condition,  the  breach  of  which  by- 
one  party  permits  the  other  to  throw  the  contract  up,  and 
consider  it  as  altogether  null.  Whether  a  provision  shall 
have  this  effect,  for  which  purpose  it  must  be  construed  as 
an  absolute  condition,  is  sometimes  a  question  of  extreme 
difficulty.  It  is  quite  certain,  however,  that  now  no  precise 
words  are  requisite  to  constitute  a  condition.  It  would  be 
difficult,  and  perhaps  impossible,  to  lay  down  rules  which 
would  have  decisive  influence  in  determining  this  vexed 
question.  Indeed,  courts  seem  to  agree  of  late  that  the  de- 
cision must  always  "depend  upon  the  intention  of  the  par- 
ties, to  be  collected  in  each  particular  case  from  the  terms  of 
the  agreement  itself,  and  from  the  subject-matter  to  which  it 
relates."  (/)  "  It  cannot  depend  on  any  formal  arrange- 
ment of  the  words,  but  on  the  reason  and  sense  of  the  thing 
as  it  is  to  be  collected  from  the  whole  contract."  (g")  It  is 
said  that  where  the  clause  in  question  goes  to  the  whole  of 
the  consideration,  it  shall  be  read  as  a  condition,  (h)  The 
meaning  of  this  must  be,  that  if  the  supposed  condition 
covers  the  whole  ground  of  the  contract,  and  cannot  be  se- 
vered from  it,  or  from  any  part  of  it,  a  breach  of  the  condi- 
tion is  a  breach  of  the  whole  contract,  which  gives  to  the 
other  party  the  right  of  avoiding  or  rescinding  it  altogether. 
But  where  the  supposed  condition  is  distinctly  separable,  so 
that  much  of  the  contract  may  be  performed  on  both  sides 
as  though  the  condition  were  not  there  ;  it  will  be  read  as  a 
stipulation,  the  breach  of  which  gives  an  action  only  to  the 
injured  party.  But  it  is  not  safe  to  assert  that  which  is 
sometimes  said  to  be  law,  (i)  that  where  in  case  of  a  breach 
the  party  cannot  have  his  action  for  damages,  there  the 
doubtful  clause  must  be  read  as  a  condition,  because  other- 
wise the  party  injured  would  be  without  remedy.  For  if 
"  the  reason  and  sense  of  the  thing,"  or  the  rational  and  fair 
construction  of  the  contract  leads  to  the  conclusion  that  the 
parties  did  not  agree,  nor  intend  that  there  should  be  this 

(/)  Per  Tiyidal,  C.  J.,  in  Glaholm  r.  (/*)  Boone  r.  Eyre,  1  H.  Bl.  273,  n. 

Hays,  2  M.  &  Gr.  266.  (a). 

(g)  Yev  Jjori  Ellenborouqh,  in  Ritchie  (/)  See  Pordage  v.  Cole,  1    Saund. 

1-.  Atkinson,  10  East,  295.'  319. 


40  THE   LAW   OF    CONTRACTS.  [PART  11. 

condition,  then  there  is  none  ;  and  if  a  party  be  in  this  way 
injured  and  remediless,  it  is  his  own  fault,  in  that  he  neither 
inserted  in  his  contract  a  condition,  the  breach  of  which 
would  discharge  him  from  all  obligation,  nor  a  stipulation, 
for  the  breach  of  which  he  might  have  his  action,  (j) 


SECTION  VII. 

OP   MUTUAL   CONTRACTS. 

It  is  a  similar  question — sometimes  indeed  the  very  same 
question  —  whether  covenants  are  mutual,  in  such  sense  that 
each  is  as  a  condition  precedent  to  the  other.  And  also 
whether  covenants  or  agreements  be  dependent  or  independ- 
ent, (k)  By  the  very  definition  of  them,  if  they  are  depend- 
ent, that  is,  if  each  depends  on  the  other,  the  failure  of  one 
destroys  and  annuls  the  other.  Or  if  this  dependence  is  not 
mutual,  but  one  of  them  rests  upon  the  other  by  a  depend- 
ence which  is  not  equally  shared  by  the  other,  if  that  contract 
upon  which  this  dependence  rests  is  broken  and  defeated,  the 
other  by  reason  of  its  dependence  is  annu-lled  and  destroyed 
also.  But  they  may  be  wholly  independent,  although  relat. 
ing  to  the  same  subject,  and  made  by  the  same  parties,  and 
included  in  the  same  instrument.  In  that  case  they  are  two 
separate  contracts.  Each  party  must  perform  what  he  un- 
dertakes, without  reference  to  the  discharge  of  his  obligation 
by  the   other  party.     And  each  party  may  have  his  action 

(  ;')  Sec  infra,  n.  (I).  until  this  prior  condition  is  performed, 

(ic)  In  Kingston  v.  Preston,  cited  in  the  other  party  is  not  liable  to  an  action 

Jones    V.    Bill-clay,    Doug.   690,    Lord  on  his  covenant.     3.   There    is   also   a 

Mansfield    said  :  —  "  There    are    three  third  sort  of  covenants,  which  arc  vm- 

kinds   of  covenants:    1.    Such   as    arc  tual  conditions  to  be   performed  at  the 

called  mutual  and    independent,    where  same  time ;  and  in  these,  if  one  party 

cither  party  may  recover  damages  from  was  ready,  and  offered  to  perform  his 

the  other,  for  the  injury  he  may  have  part,  and  the  other  neglected  or  refused 

received  by  a  breach  of  the  covenants  in  to  perform  his,  be  wlio  was  ready  and 

his  favor,  and  where  it  is  no  excuse  for  oflered  has  fulfilled  his  engagement,  and 

the  defendant  to  allege  a  breach  of  the  may  maintain  an  action  for  the  default 

covenants  on  the  part  of  the  plaintiff,  of   tiie  other;  though  it  is  not  certain 

2.  There  are  covenants  which  are  con-  that  either  is  obliged  to  do  the  first  act." 

ditions  and  dependent,  in  which  the  per-  See  also  Mason  i\  Chambers,  4  Littcll, 

formance  of  one  depends  upon  the  prior  253  ;  and  Mr.  Durnford's  note  to  Ach- 

performance  of  another,  and  therefore,  crley  v.  Vernon,  Willes,  157. 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    41 


against  the  other  for  the  non-performance  of  his  agreement, 
whether  he  has  performed  his  own  or  not.  Now  the  law  has 
no  preference  for  one  kind  of  contract  over  another;  nor  does 
it  by  its  own  implication  and  intendment  make  one  rather 
than  the  other,  and  still  less  does  it  require  one  rather  than 
the  other.  It  may  indeed  be  safely  said,  that  this  question 
in  each  particular  case  will  be  determined  by  inferring  with 
as  much  certainty  as  the  case  permits,  the  meaning  and 
purpose  of  the  parties,  from  a  rational  interpretation  of  the 
whole  contract.  (I) 


(/)  In  ancient  times  the  decision  of 
questions  of  this  kind  depended  rather 
npon  nice  and  subtle  constructions  put 
upon  the  language  of  a  contract,  than 
upon  the  evident  sense  and  intention  of 
the  i)arties,  as  gathered  from  a  rational 
consideration  of  the  whole  instrument, 
and  the  subject-matter  of  the  agreement. 
Thus,  in  15  li.  7, 10,  pi.  17,  it  was  ruled 
by  Fineux,  C.  J.,  that  if  one  covenant 
with  me  to  serve  me  for  a  year,  and  I 
covenant  Avith  him  to  give  him  £20,  if 
I  do  not  say  for  the  cause  aforesaid,  he 
shall  have  an  action  for  the  £20,  al- 
though he  never  serves  me ;  otherwise 
it  is  if  I  say  that  he  shall  have  £20  for 
the  cause  aforesaid.  So  if  I  covenant 
■with  a  man  that  I  will  marry  his  daugh- 
ter, and  he  covenants  with  me  that  he 
will  make  an  estate  to  me  and  his 
daughter,  and  the  heirs  of  our  two  bo- 
dies begotten,  if  I  afterwards  marry 
another  woman,  or  his  daughter  mar- 
ries another  man,  yet  I  shall  have  an 
action  of  covenant  against  him  to  com- 
pel him  to  make  the  estate ;  but  if  the 
covenant  were  that  he  would  make  the 
estate  to  us  two  for  the  cause  aforesaid, 
in  that  case  he  would  not  make  the 
estate  until  we  were  married.  And 
such  was  the  opinion  of  the  whole  court. 
But  Lord  Holt,  in  the  great  case  of 
Thorp  V.  Thorp,  12  Mod.  455,  and  Lord 
Chief  Justice  Willes,  in  Achcrley  i\ 
Vernon,  Willes,  153,  advanced  more 
rational  ideas  upon  the  subject.  And 
in  Kingston  v.  Preston,  already  cited, 
Lord  Mansfield  declared  that  the  de- 
pendence or  independence  of  covenants 
was  to  be  collected  from  the  evident 
sense  and  meaning  of  the  parties,  and 
that,  however  transposed  they  might  be 
in  the  deed,  their  precedency  must  de- 
pend on  the  order  of  time  in  which  the 


intent  of  the  transaction  requires  their 
performance.  Since  that  time  the  prin- 
ciple thus  enunciated  by  Lord  Mansfield 
has  been  steadily  adhered  to  ;  and,  as  a 
means  of  carrying  it  out,  and  applying 
it  to  the  facts  of  particular  cases,  Mr. 
Sergeant  Williams,  in  his  elaborate  note 
to  Pordage  v.  Cole,  1  Wms.  Saund. 
319,  has  given  the  five  following  rules, 
collected  with  great  care  and  accuracy 
from  the  decided  cases.  1.  "  If  a  day 
be  appointed  for  payment  of  money, 
or  part  of  it,  or  for  doing  any  other 
act,  and  the  day  is  to  happen,  or 
may  happen,  before  the  thing  which 
is  the  consideration  of  the  money,  or 
other  act  is  to  be  performed ;  an  ac- 
tion may  be  brought  for  the  money,  or 
for  not  doing  such  other  act  before  per- 
formance ;  for  it  appears  that  the  party 
relied  upon  his  remedy,  and  did  not 
intend  to  make  the  performance  a  con- 
dition precedent ;  and  so  it  is  where  no 
time  is  fixed  for  performance  of  that 
which  is  the  consideration  of  the  money 
or  other  act."  See  Pordagc  v-  Cole, 
1  Saund.  319  b;  Thorp  v.  Thorp,  12 
Mod.  460,  1  Salk.  171,  per  Holt,  C.  J. ; 
Peeters  v.  Opie,  2  Saund.  350,  per  Hale, 
C.  J. ;  Campbell  v.  Jones,  6  T.  K.  570 ; 
Mattock  V.  King-lake,  10  A.  &  El.  50; 
Wilks  V.  Smith,  10  M.  &  W.  355;  Ed- 
gar V.  Boies,  11  S.  &  Raw.  445  ;  Steven- 
son t'.  Klcppinger,  5  Watts,  420 ;  Low- 
ry  V.  Mehatty,  10  Watts,  387 ;  Golds- 
borough  V.  Orr,  8  Wheat.  217;  Robb 
V.  Montgomery,  20  Johns.  15.  The 
principle  of  this  rule  has  been  misap- 
plied in  various  cases,  as  in  Terry  v. 
Duntze,  2  H.  Bl.  389.  In  that  case  A. 
covenanted  to  build  a  house  for  B.,  and 
finish  it  on  or  before  a  certain  day,  in 
consideration  of  a  sum  of  money,  which 
B.  covenanted  to  pay  A.  by  instalments 


42 


THE   LAW    OF    CONTRACTS. 


[part  II. 


SECTION  VIII. 


OF   THE   PRESUMPTIONS    OF   LAW. 


There  are  some  general  presumptions  of  law,  which  may 
be   considered    as   affectina:   the    construction   of   contracts. 


as  the  building  proceeded.    It  was  held 
tliat  the  finishing  of  the  house  was  not 
a  condition  precedent  to  the  payment 
of  the  money  ;  that  A.  might  maintain 
an   action   of  debt  against  15.  for  the 
whole   sum,  though   the   building  was 
not  finished  at  the  time  appointed,  on 
the  ground  that  part  of  the  money  was 
to   be  paid  before  the  house  could  be 
completed.     This  case  was  followed  in 
Seers  v.  Fowler,  2  Johns.  272,  and  Ha- 
vens V.  Bush,  Id.   387.     But   m  Cun- 
ningham  V.   Morrell,    10    Johns.    203, 
Seers  v.  Fowler  and  Havens  v.  Bush 
were  overruled,  and   the   authority   of 
Terry  v.  Duntze  repudiated.     Cimning- 
ham  V.  Morrell  was   followed   in  Mc- 
Lure  V.  Rush,  9  Dana,  G4,  and  in  Allen 
V.  Sanders,  7  B.  Monr.  593,  overruling 
the  earlier   cases  of  Craddock  v.  Ald- 
ridge,  2  Bibb,  15,  and  Mason  v.  Cham- 
bers, 4  Littcll,   253.     And   see  to  the 
same  effect  Kettle  v.  Harvey,  21  Verm. 
301 ;  Lord  v.  Belknap,   1    Cush.    279 ; 
Tompkins  v.  Elliot,  5  Wend.  496.  —  In 
the  case  of  contracts  for  the  purchase 
and  sale  of  real  estate,  where  the  pur- 
chaser covenants  to  pay  the  purchase- 
money  by  instalments,  and  the  vendor 
covenants  to  convey  by  deed,  either  on 
the  last  day  of  payment,  or  on  some 
day  previous,  the  covenants  to  pay  the 
instalments  falling  due  before  the  day 
appointed  for  conveying  by  deed,  are 
independent  of  the  covenant  to  convey, 
and  an  action   may  be  maintained  for 
such  instalments,  without  showing  any 
conveyance  or  offer  to  convey ;  but  the 
conveyance,  or  offer  to  convey,  is  a  con- 
dition precedent  to  the  right  to  insist 
upon   the   payment   of  an    instalment 
falling  due  either  on  or  after  the  day  of 
conveyance.     Grant  i\  Jolmson,  1   Scl- 
deu,  247,  reversing  the  judgment  of  the 
Supreme  Court  in  the  same  case  in  6 
Barb.  337.     In   this  case   the   plaintiff 
agreed  to  sell  to  the  defendant  a  piece 
of  land,  and  covenanted  to  give  posses- 
sion of  the  land  on  the  first  of  Novem- 
ber, 1845,  and  to  convey  by  deed  on  the 


first  of  May,  1846.  And  the  defendant 
covenanted  to  pay  $950,  as  follows,  to 
wit:  $200  on  the  first  of  April,  1846, 
$200  on  the  first  of  April,  1847,  $275 
on  tlie  first  of  April,  1848,  and  $275  on 
the  first  of  April,  1849.  The  plaintiff 
gave  the  defendant  possession  of  the 
premises,  and  the  defendant  paid  the 
first  instalment  according  to  the  terms 
of  the  agreement.  The  present  action 
was  brought  to  recover  the  second  in- 
stalment ;  and  the  court  lield,  that  the 
conveyance  by  deed  was  a  condition 
precedent  to  the  payment  of  any  instal- 
ment after  the  first :  and  therefore  the 
plaintiff  was  not  entitled  to  recover 
without  averring  a  performance  or  ten- 
der of  performance  of  such  condition. 
So  in  Bean  v.  Atwater,  4  Conn.  3,  A. 
and  B.  on  the  6th  of  August,  1816,  en- 
tered into  articles  of  agreement,  where- 
by A.,  in  consideration  of  the  covenants 
to  be  performed  and  payments  to  be 
made  by  B.,  granted  and  sold  to  B.  cer- 
tain tracts  of  land,  and  covenanted  to 
confirm  them  to  him  by  deed  in  fee  sim- 
ple, on  the  first  of  June,  1817  ;  and  A. 
covenanted  to  pay  therefor  the  sum  of 
4,000  dollars,  of  which  500  dollars  were 
to  be  paid  immediately,  500  dollars  on 
the  first  of  January,  1817,  500  dollars 
on  the  first  of  June,  1817,  500  dollars 
on  the  first  of  January,  1818,  1,000  dol- 
lars on  the  first  of  January,  1819,  and 
the  residue  on  the  first  of  January,  1820. 
For  tiic  performance  of  these  stipula- 
tions the  parties  bound  tiiemsclves,  re- 
spectively, in  the  penalty  of  8,000  dol- 
lars. In  an  action  brought  by  A. 
against  B.  for  the  money,  it  was  held, 
that  the  covenant  of  the  defendant,  so 
far  as  it  related  to  the  two  first  instal- 
ments, was  independent,  and  the  plain- 
tifi'  was  entitled  to  recover  the  sum  due 
thereon,  without  averring  or  proving 
performance  of  the  covenant  on  his 
part ;  but  that,  .so  far  as  it  related  to  the 
instalment  j)ayable  on  the  first  of  June, 
1817,  and  the  subsequent  instalments, 
performance  by  the  plaintiff  was  a  con- 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         43 

Thus,  it  is   a  presumption  of  law  that  parties  to  a  simple 
contract  intended  to  bind  not  only  themselves,  but  their  per- 


dition precedent  to  his  right  of  recovery. 
And  sec  to  the  same  eliect  Lconurd  v. 
Bates,  1  Blackf.  172;  Kane  v.  Hood,  13 
Pick.  281.     But  sec  Weaver  v.  Child- 
ress, .3  Stewart,  361.  — 2.  "  When  a  day 
is  appointed  for  the  payment  of  money, 
&c.,  and  the  day  is  to  happen  after  the 
thing  which  is  the  consideration  of  the 
money,  &c.,  is  to  he  performed,  no  ac- 
tion can  be  maintained  for  the  monej^, 
&c.,   before    performance."      Thorp    v. 
Thorp,    12    Mod.   460,    1    Salk.    171  ; 
Bean  v.  Atwater,  4  Conn.   9 ;  Dey  v. 
Dox,  9  Wend.   129;  Morris  v.  Slite'r,  1 
Denio,   59.  —  3.  "  Wlierc    a   covenant 
goes   only   to  part    of   the    considera- 
tion  on   both   sides,   and   a  breach  of 
such  covenant  may  be  paid  for  in  da- 
mages, it  is  an  independent  covenant 
and    an    action     may    be    maintained 
for   a  breach   of  the   covenant  on  the 
the  part  of  the  defendant,  without  aver- 
ring performance  in  the  declaration." 
The   leading  case   upon   this   point   is 
Boone 'u.  Eyre,  1  II.  Bl.  273,  note  (a). 
The  plaintiff,  in  that  case,  conveyed  to 
the  defendant  the  equity  of  redemption 
of  a  plantation  in  the  West  Indies,  to- 
gether with  the  stock  of  negroes  upon 
it,  in  consideration  of  £500,  and  an  an- 
nuity of  £1 60  per  annum  for  life  ;  and 
covenanted   that  he  had  good  title  to 
the  plantation,  was  lawfully  possessed 
of  the  negroes,  and  that  the  defendant 
should   quietly  enjoy.     The   defendant 
covenanted   that   the  plaintiff  well  and 
truly  performing  all  and  every  thing  on  his 
part  to  he  jjerforined^  he  the  defendant 
■would  pay  the  annuity.    The  action  was 
brought  for  the  non-payment  of  the  an- 
nuity.    Plea,  that  the  plaintiff  was  not 
at  the  time  of  making  the  deed  legally 
possessed  of  the  negroes,  and  so  had  not 
a  good   title  to   convey.     General  de- 
murrer to  the  plea.     Lord  Mansjield:  — 
"  The  distinction  is  very  clear,  where 
mutual  covenants  go  to  the  whole  of  the 
consideration  on  both    sides,   they  are 
mutual  conditions,  the  one  precedent  to 
the  other.     But  where  they  go  only  to 
a  part,  where  a  breach  may  be  paid  for 
in  damages,  there  the  defendant  has  a 
remedy  on  his  covenant,  and  shall  not 
plead  it  as  a   condition  precedent.     If 
this  plea  be  allowed,  any  one  negro  not 
being  the  property  of  the  plaintiff,  would 
bar  the  action."    Upon  this  case  Ser- 


geant Williams  remarks  as  follows:  — 
"  The  luhole  consideration  of  the  cove- 
nant on  the  part  of  B.  the  purchaser  to 
l)ay  the  money,  was  the  conveyance  by 
A.  the  seller  to  him  of  the  e(juiti/  of  re- 
demption of  the  plantation,  and  also  the 
stock  of  negroes  upon  it.     The  excuse 
for  non-payment   of    the   money  was, 
that  A.  had  broke  his  covenant  as  to 
part  of  the  consideration,  namely,  the 
stock  of  negroes.     But  as  it  appeared 
that  A.  had  conveyed  the  equity  of  re- 
demption to  B.,  and  so  had  in  part  exe- 
cuted his  covenant,  it  would  be  unrea- 
sonable that  B.  should  keep  the  plan- 
tation, and  yet  refuse  payment,  because 
A.  had  not  a  good  title  to  the  negroes. 
Per  Ashhurst,  J.,  6  T.  R.  573.    Besides, 
the  damages   sustained   by  the  parties 
would  be  unequal,  if  A.'s  covenant  were 
held  to  be  a  condition  precedent.    Duke 
of  St.  Albans  v.   Shore,  1  H.  Bl.  279, 
For  A.  on  the  one  side  would  lose  the 
consideration  money  of  the  sale,  but  B.'s 
damage  on  the  other  might  consist  per- 
haps in  the  loss  only  of  a  few  negroes. 
So  where  it  was  agreed  between  C.  and 
J).,  that  in  consideration  of  £500,  C. 
should    teach   D.  the  art   of  bleaching 
materials  for  making  paper,  and  permit 
him,  during  the  continuance  of  a  patent 
which  C-  had  obtained  for  that  purpose, 
to  bleach  such  materials   according  to 
the  specification ;  and  C  in  considera- 
tion of  the  sum  of  £250  paid,  and  of 
the  further  sum  of  £250  to  be  paid  by 
D.  to  him,  covenanted  that  he  would 
with  all  possible   expedition  teach  D. 
the  method  of  bleaching  such  materials, 
and  D.  covenanted  that  he  would,  on  or 
before  the  24th  of  February,   1794,  or 
sooner,  in  case    C.   should  before  that 
time  have  taught  him  the  bleaching  of 
such  materials,  pay  to  C.  the  further  sura 
of  £250.    In  covenant  by  C.  against  D., 
the  breach  assigned  was  the  non-pay- 
ment of  the  £200.  Demurrer,  tliat  it  was 
not  averred  that  C.  had  taught  D.  the 
method   of    bleaching  such   materials ; 
but  it  was  held  by  the  court,  that  the 
ivliole  consideration   of   the   agreement 
being  that  C.  should  permit  D.  to  bleach 
ma.terials,  as  well  as  teach  him  the  me- 
thod of  doing  it ;  the  covenant  by  C.  to 
teach  formed  but  part  of  the  considera- 
tion, for  a  breach  of  which  D.  might  re- 
cover a  recompense  in  damages.    And 


44 


THE   LAW   OF   CONTKACTS. 


[part  II. 


sonal  representatives ;  and  such  parties  may  sue  on  a  con- 


C.  having  in  part  executed  his  agree- 
ment, by  transferring  to  I),  a  right  to 
exercise  .the  patent,  he  ought  not  to 
keep  that  right  without  paying  the  re- 
mainder of  tiic  consideration  because  he 
may  have  sustained  some  damage  by 
D.'s  not  iiaving  instructed  him  ;  and  the 
demurrer  was  overruled.  Campbell  v. 
Jones,  6  T.  R.  570.  Hence  it  appears 
that  the  reason  of  the  decision  in  these 
and  other  similar  cases,  besides  the  in- 
equality of  the  damages,  seems  to  be, 
that  where  a  person  has  received  a  part 
of  the  consideration  for  which  he  enter- 
ed into  the  agreement,  it  would  be  un- 
just that  because  he  has  not  had  the 
ivhole,  he  should  therefore  be  permitted 
to  enjoy  that  part  without  either  paying 
or  doing  an}'  thing  for  it.  Therefore 
the  law  obliges  him  to  perform  tlie 
agreement  on  his  part,  and  leaves  him 
to  his  remedy  to  recover  any  damage 
he  may  have  sustained  in  not  having 
received  the  whole  consideration.  And 
hence  too,  it  seems,  it  must  appear  upon 
the  record  that  the  consideration  was 
executed  in  part,  as  in  Boone  v.  Eyre, 
above  mentioned,  the  action  was  on  a 
deed,  whereby  the  plaintiff"  had  convey- 
ed to  the  defendant  the  equity  of  re- 
demption of  the  plantation,  for  the  de- 
fendant did  not  deny  tlie  plaintiff's  title 
to  convey  it ;  so  in  Campbell  ii.  Jones, 
the  plaintift'  had  transferred  to  the  de- 
fendant a  riglit  to  exercise  the  patent. 
Therefore  if  an  action  be  brought  on  a 
covenant  or  agreement  contained  in 
articles  of  agreement,  or  other  execu- 
tory contract  where  the  whole  is  future, 
it  seems  necessary  to  aver  performance 
in  the  declaration  of  the  whole,  or  at 
least  of  part  of  that  which  the  plaintiff" 
has  covenanted  to  do ;  or  at  least  it 
must  be  admitted  by  the  plea  that  he 
has  performed  it.  As  where  A.,  by  ar- 
ticles of  agreement,  in  consideration  of 
a  sum  of  money  to  be  paid  to  him  by 
B.  on  a  certain  day,  covenants  to  con- 
vey to  B.  on  the  same  day  a  house,  to- 
gether with  the  fixtures  and  furniture 
tlicrcin,  and  that  he  was  lawfully  seised 
of  the  house,  and  jiossessed  of  the  fix- 
tures and  furniture.  In  an  action 
against  B.  for  the  money,  A.  must  aver 
that  he  conveyed  either  the  whole  of 
the  premises,  or  at  least  the  house,  to 
B.,  or  it  must  be  admitted  by  B.  in  his 
plea  that  A.  did  convey  the  house,  but 
was  not  lawfully  possessed  of  the  furni- 


ture or  fixtures."     For  further  illustra- 
tion of  this  principle,  see  Fothergill  v. 
"Walton,  2  J.  B.  Moore,  630 ;  Stavcrs  v. 
Curling,  3  Bing.  N.  C.  355;  Franklin 
V.  Miller,  4  Ad.  &  El.  599 ;  Fishmon- 
gers' Co.  V.  Robertson,  5  M.  &  Gr.  131, 
198;  Storer  v.  Gordon,  3  M.  &  S.  308  ; 
Ritchie    v.    Atkinson,    10    East,    308; 
Havelock  v.  Geddes,  Id.  555  ;  Mill  Dam 
Foundery  v.  Ilovey,  21  Pick.  417  ;  Tile- 
ston  V.  Newell,  13  Mass.  406  ;  Bennet 
V.  Pixley,  7  Johns.  249  ;  Obcrmycr  v. 
Nichols,  6  Biun.  159  ;  Morrison  v.  Gal- 
loway,  2   H.   &  Johns.   461  ;   Todd  v. 
Summers,  2  Gratt.  167  ;  Lewis  v.  Wel- 
don,  3  Rand.  71  ;  McCullough  v.  Cox, 
6  Barb.  386  ;    Payne  v.  Bettisworth,  2 
A.  K.  Marsh.  427 ;  Keenaii  v.  Brown, 
21   Verm.   86  ;  Tompkins   v.   Elliot,  5 
"Wend.  496  ;  Grant  v.  Johnson,  5  Barb. 
161,  6  Id.  337,    1    Selden,   247.     "If," 
says  Shaw,  C.  J.,  in  Knight  v.  The  New 
England  AVorsted  Co.  2  Cush.  286,  "  a 
party  promise  to  build  a  house  upon 
the  land  of  anothei*,  and  to  dig  a  well 
on   tlie  premises,  and  to  place  a  pump 
in  it ;  and  the  owner  of  tlie  land  cove- 
nants seasonably  to   supply  all  mate- 
rials and   furnish  a   pump ;  it  is  very 
clear  that  the  stipulation  to  furnish  ma- 
terials is  dependent,  and  constitutes  a 
condition,  because    the    builder  cannot 
perform  on  his  part  until  he  has  the 
materials.     So  to  put  a  pump  into  the 
well.     But  the  stipulation  to  dig  a  well 
is  not  conditional,  because  it  goes  to  a 
small  part  only   of  the   consideration, 
and  does  not  necessarily  depend  on  a 
prior  performance,  on  the  part  of  the 
owner,   and   because  a  failure    can  be 
compensated  in  damages,  and  the  reme- 
dy of  the  owner  is  by  action  on  the  con- 
tract." —  4.  "  But  where   the    mutual 
covenants  go  to  the  zuhole  consideration 
on   both   sides,   they   are   mutual   con- 
ditions, and  performance  must  be  aver- 
red."     Duke  of  St.  Albans   v.   Shore, 
1   II.  Bl.  270;  Dakin   v.  Williams,  11 
Wend.  67.  —  5.  "  Where  two  acts  are  to 
be  done  at  the  saine  time,  as  where  A. 
covenants  to  convey  an  estate  to  B.  on 
such  a  day,  and  in  consideration  thereof 
B.  covenants  to  pay  A.  a  sum  of  mo- 
ney ou  the  same  d(tij,  neither  can  main- 
tain  an    action   without  showing  per- 
formance of,  or  an  offer  to  perform  his 
part,  though  it  is  not  certain  which  of 
them  is  obligeil  to  do  the  first  act;  and 
this  particularly  applies  to  all  cases  of 


en.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    45 

tract,  although  not  named  therein.  (/;?)  Hence,  as  we  have 
seen,  executors,  though  not  named  in  a  contract,  are  liable, 
so  far  as  they  have  assets,  for  the  breach  of  a  contract  which 
was  broken  in  the  lifetime  of  their  testator.  And  if  the  con- 
tract was  not  broken  in  his  lifetime,  they  must  not  orcak  it, 
but  will  be  held  to  its  performance,  unless  this  presumption 
is  overcome  by  the  nature  of  the  contract ;  as  where  the 
thing  to  be  done  required  the  personal  skill  of  the  testator 
himself,  (n)  So  too,  if  several  persons  stipulate  for  the  per- 
formance of  any  act,  without  words  of  severalty,  the  pre- 
sumption of  law  is  here  that  they  intended  to  bind  them- 
selves jointly,  (o)  But  this  presumption  also  might  be 
rebutted  by  the  nature  of  the  work  to  be  done,  if  it  were  cer- 
tain that  separate  things  were  to  be  done  by  separate  parties, 
who  could  not  join  in  the  work,  (p) 

It  is  also  a  legal  presumption  that  every  grant  carries  with 
it  whatever  is  essential  to  the  use   and  enjoyment  of  the 


sale."  See  the  numerous  cases  cited 
by  Serjeant  Williams.  And  also  Camp- 
bell V.  Gittings,  19  Ohio,  347:  Wil- 
liams V.  Healey,  3  Denio,  363  ;  Gazlcy 
V.  Price,  16  Johns.  267.  —  Where  a  par- 
ty agreed  on  i/ie  payment  by  another  of 
certain  sums  of  money  to  a  third  person, 
to  assign  certain  certificates  of  sale  of 
land,  it  was  held  that  the  covenants 
were  independent,  and  that  in  a  suit  by 
the  party  bound  to  assign,  a  general 
averment  of  readiness  on  his  part  to 
perform  was  sufficient.  Slocum  v.  Des- 
pard,  8  Wend.  615.  See  Northrup  v. 
Northrup,  6  Cow.  296  ;  Champion  v. 
White,  5  Cow.  509 ;  Robb  v.  Montgo- 
mery, 20  Johns.  15.  But  see  Parker  v. 
Parmele,  20  .Johns.  130 ;  Adams  v. 
Williams,  2  W.  &  Serg.  227  ;  Hallo- 
way  V.  Davis,  Wright,  129.  Justice 
would  seem  to  require  that  such  stipu- 
lations should  be  considered  as  depend- 
ent. Leonard  v.  Bates,  1  Blackf.  172, 
note  ;  per  Shaw,  C-  J.,  in  Kane  v.  Hood, 
13  Pick.  281.  —  6.  It  may  also  be  laid 
down  as  a  rule,  that  stipulations  or  pro- 
mises may  be  dependent  from  the  na- 
ture of  tlie  acts  to  be  performed,  and  the 
order  in  which  they  must  necessarily 
precede  and  follow  each  other.  "  Wiicn 
the  act  of  one  party  must  necessarily 
precede  any  act  of  the  other,  as  where 
one  stipulates  to  manufacture  an  article 


from  materials  to  be  furnished  by  the 
other,  and  the  other  stipulates  to  fur- 
nish the  materials,  tlie  act  of  furnishing 
the  materials  necessarily  precedes  the 
act  of  manufacturing,  and  will  consti- 
tute a  condition  precedent,  without  ex- 
press words."  Per  Shaw,  C.  J.,  in 
Mill  Dam  Foundery  v.  Hovey,  21  Pick. 
439  ;  Thomas  v.  Cadwallader,  Willes, 
496  ;  Knight  v.  New  Eng.  Worsted  Co. 
2  Cush.  286.  In  Coombe  v.  Greene,  11 
M.  &  Wels.  480,  the  plaintiff  demised  a 
dwelling-house  and  premises  to  the  de- 
fendant, and  the  defendant  covenanted 
that  he  would  expend  .£100  in  improve- 
ments and  additions  to  the  dwelling- 
house,  under  the  direction  of  some  com- 
petent surveyor  to  be  appointed  by  the 
plaintiff.  Held,  that  the  appointment 
of  a  surveyor  was  a  condition  precedent 
to  the  defendant's  liability  to  expend 
the  .£100.  But  see  Macintosh  v.  The 
M.  C.  Railway  Co.  14  M.  &  W.  548. 

(m)  Siboni  r.  Kirlcman,  1  M.  &  W. 
418,  423  ;  Quick  v.  Ludborrow,  3  Bulst. 
30;  Marshall  v.  Broadhurst,  1  Cr.  & 
Jer.  403. 

(?;)  See  anfe,  vol.  1,  pp.  107,  111. 

(o)  See  ante,  vol.  1,  p.  11,  n.  (/(). 

(/))  See  the  case  of  Slater  v.  Magraw, 
12  Gill  &  Johns.  265,  cited  ante,  vol.  1, 
p.  11,  n.  {h).  See  also  Erskinc's  In- 
stitute, B.  3,  tit.  3,  sec.  22. 


46  THE  LAW  OF  CONTRACTS.  [PART  II. 

grant,  (q)  But  this  rule  applies  perhaps  more  strongly  to 
grants  of  real  estate  than  to  transfers  of  personal  property. 
Thus,  if  land  be  granted  to  another,  a  right  of  way  to  the 
land  will  go  with  the  grant,  (r)  But  it  has  been  held,  where 
goods  were  sold  on  execution,  and  left  on  the  land  of  the 
judgment  debtor,  that  the  purchaser  acquired  no  absolute 
right  to  go  on  the  land  of  the  seller  for  the  purpose  of  taking 
the  goods,  (s)  But  it  has  also  been  held  that  where  goods  of 
the  plaintiff  were  sold  on  distress  for  rent,  which  were  on 
plaintiff's  land,  and  one  of  the  conditions  to  which  he  was  a 
party  permitted  defendant  to  enter  from  time  to  time  and 
take  the  goods  away,  this  was  a  license  by  the  plaintiff,  and 
was  irrevocable,  because  coupled  with  an  interest,  (t)  It 
may  perhaps  be  inferred,  from  the  cases  and  dicta  on  this 
subject,  that  as  real  rights  go  with  a  grant  of  real  property 
where  they  are  essential  to  its  proper  use,  so  such  personal 
rights,  or  even  personal  chattels,  would  go  with  the  transfer 
of  personal  property,  as  were  absolutely  necessary  for  the 
use  and  enjoyment  of  the  things  sold  ;  for  it  might  well  be 
presumed  to  have  been  the  intention  and  understanding  of 
the  parties  that  they  should    pass   together,  (m)     And  we 

(7)  Liford's   case,    11    Rep.  52;  Co.  Patterson,  29  Maine,  499.     The   right 

Lit.  56  a;  Pomfrct  v.  Ricroft,  1  Wms.  of  way  is  suspended  or  destroyed  when- 

Siiund.  323,  n.  (6).     Where  an  act  of  ever  the  necessity  ceases.      Pierce  v. 

parliament  empowered  a  railway  com-  Selleck,  18  Conn.  321  ;  Holmes  v.  Go- 

pany  to  cross  the  line  of  another  com-  ring,  2  Bing.  76.    Where  a  parcel  of 

pan}',  by  means  of  a  bridge,  it  was  held  land  is  sold  for  a  specific  purpose,  and 

that  the  first-mentioned  company  had  conveyed  without  reservation,  the  law 

consequently  the  right  of  placing  tcm-  will  not  imply  in  favor  of  the  vendor  a 

porary  scaifolding  on  the  land  belong-  right  of  way  of  necessity  over  or  through 

ing  to  the  latter,  if  the  so  placing  it  such  land,  inconsistent  with  the  object 

were  necessary  for  the  purpose  of  con-  of  the  purchase.     Seeley  v.  Bishop,  19 

structing  the  bridge;  for  iibi  aliquid con-  Conn.  128. 

ceditur,  conceditur  et  id  sine  quo  7-es  ipsa  (s)  Williams  v.  Morris,  8  M.  &  W. 

esse  non  potest.     Clarence  Railway  Co.  488. 

V.  Great  North  of  England  Railway  Co.  {t)  Wood  v.  Manley,  11   Ad.  &  El. 

13  M.  &  W.  706.     See  also  Ilinchliffe  34. 

V.  Earl  of  Kinnoul,  5  Bing.  N.  C  1  ;  (u)  If  one  grant  trees  growing  in  his 

Dand  v.   Kingscote,  6  M.  &  W.  174  ;  wood,  the  grantee  may  enter  and  cut 

Broom's  Legal  Maxims,  362,  2d.  ed.  down  the  trees  and  carry  them  away. 

(r)  Pomfrct  v.  Ricroft,  1  Wms.  Saund.  Reniger  v.  Fogossa,  Plowd.  1 6  ;  Liford's 

323,  note  (6);  Howton  v.  Frearson,  8  case,  11    Rep.    52;    Shop.    Touch.    89. 

T.  R.  50  ;  Collins  v.  Prentice,  15  Conn.  By  a  grant  of  the  fish  in  a  pond,  a  right 

39.     It  must  be  strictly  a  way  of  neces-  of  coming  upon  the  banks  and  fishing 

sity,  and  not  of  mere  convenience.    Ni-  for  them  is   granted.     Reniger  v.  Fo- 

chols  r.  Luce,  24  Pick.   102;  Allen  v.  gossa,    Plowd.    16;    Shep.    Touch.  89; 

Kincaid,  2  Fairf.   155;    Stuyvesant   v.  Lord  Darcy  r.  Askwith,  Hob.  234.     A 

WoodruflF,   1  New  Jer.   134;  Trask  v.  rector  may  enter  into  a  close  to  carry 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OP  CONTRACTS.        47 

should  be  even  inclined  to  say,  that  if  one  sold  goods  on  his 
land,  especially  under  seal,  and  there  was  nothing  in  the  con- 
tract or  the  circumstances  to  show  that  the  buyer  was  to 
come  into  possession  otherwise  than  by  entering  ifpon  the 
land  and  taking  them,  it  would  be  presumed  that  this  was 
intended,  and  that  the  sale  operated  as  a  license  to  do  this 
in  a  reasonable  time  and  a  reasonable  way,  which  the  seller 
could  not  revoke,  (v) 

Where  any  thing  is  to  be  done,  as  goods  to  be  delivered, 
or  the  like,  and  no  time  is  specified  in  the  contract,  it  is  then 
a  presumption  of  law  that  the  parties  intended  and  agreed 
that  the  thing  should  be  done  in  a  reasonable  time,  (w)  But 
what  is  a  reasonable  time  is  a  question  of  law  for  the 
court,  (x)  They  will  consider  all  the  facts  and  circumstances 
of  the  case  in  determining  this,  and  if  any  facts  bearing  upon 
this  point  are  in  question,  it  will  be  the  province  of  the  jury 
to  settle  those  facts,  although  the  influence  of  the  facts  when 
determined,  upon  the  question  of  reasonableness,  remains  to 
be  determined  by  the  court.  In  general,  it  may  be  said  that 
questions  of  reasonableness,  other  than  that  of  time,  are 
questions  of  fact  for  the  jury. 

away  the  tithes  over  the  usual  way,  as  See  also  Gale  and  Whatley  on  Ease- 
incident  to  his  right  to  the  tithes.  Cobb  ments,  p.  18,  et  seg. 
V.  Selby,  5  Bos.  &  Pul.  466.  (iv)  Crocker  v.  The  Franklin  H.  &  F. 
(d)  Perhaps,  however,  it  would  be  Man.  Co.3  Sumn.  530  ;  Ellisu.  Thomp- 
found  difficult  to  support  this  proposi-  son,  3  M.  &  W.  445 :  Greaves  v.  Ash- 
tion  in  its  full  extent,  unless  the  grant  lin,  3  Campb.  426  ;  Sawyer  v.  Ham- 
was  made  by  deed.  It  would  seem  that  matt,  15  Maine,  40  ;  Howe  v.  Hunting- 
such  a  license,  in  order  to  be  irrevoca-  ton,  Id.  350  ;  Atkinson  v.  Brown,  20 
ble,  must  amount  to  a  grant  of  an  inte-  Maine,  67. 

rest  in  land,  which  can  only  be  by  deed.         (ar)  Attwood  v.  Clark,  2  Greenl.  249  ; 

"  It  certainly  strikes  one  as  a  strong  pro-  Kingsley  v.  Wallis,  14  Maine,  57  ;  Mur- 

position  to  say  that  such  a  license  can  ry  v.  Smith,   1   Hawkes,  41.    For  cer- 

be  irrevocable,  unless  it  amount  to  an  tain  exceptions  to  this  rule,  see  Howe 

interest  in  land,  which  must  therefore  v.  Huntington,   15   Maine,  350.      See 

be  conveyed  by  deed."    Per  Parke,  B..  also  Hill  v.  Hobart,  16  Maine,  164. 
in  Williams  v.  Morris,  8  M.  &  W.  488. 


48 


THE   LAW   OP   CONTKACTS. 


[part  n. 


SECTION  IX. 
OF  THE  EFFECT  OF  CUSTOM  OR  USAGE. 

A  custom,  which  may  be  regarded  as  appropriate  to  the 
contract  and  comprehended  by  it,  has  often  very  great  influ- 
ence in  the  construction  of  its  language,  (y)     The  general 


(y)  That  evidence  may  be  given  of  a 
custom  or  usage  of  trade  to  aid  in  the 
construction  of  a  contract,  either  by  fix- 
ing tlie  meaning  of  words  where  doubt- 
ful, or  by  giving  them  a  meaning  wholly 
distinct  from  their  ordinary  and  popu- 
lar sense,  is  a  well  established  doctrine. 
Thus,  where  it  was  represented  to  un- 
derwriters on  a  policy  of  insurance  that 
the  sliip  insured  was  to  sail  "  in  the 
month  of  October,"  evidence  was  ad- 
mitted to  show  that  the  expression  "  in 
the  month  of  October,"  was  well  under- 
stood amongst  men  used  to  commercial 
affairs  to  signifj-  some  time  between  the 
25th  of  that  month  and  the  1st  or  2d  of 
the  succeeding  month.  Chaurand  v. 
Angerstein,  Peake's  N.  P.  Gas.  43.  So 
also,  custom  or  usage  may  be  admitted 
to  show  that  '•  a  whaling  voyage  "  in- 
cludes the  taking  of  sea-elephants,  on 
the  beaches  of  isl.ands  and  coasts,  as 
well  as  whales.  Child  v.  Sun  Mutual 
Ins.  Co.  3  Sandf.  26.  So  also  as  to  the 
meaning  of  •'  cotton  in  bales."  Taylor 
V.  Briggs,  2  C.  &  P.  525.  Evidence 
may  also  be  admitted  that  the  word 
"days  "  in  a  bill  of  lading  means  work- 
ing days,  and  not  running  days.  Cocli- 
ran  v.  Retberg,  3  Esp.  121.  Evidence 
may  also  be  given  of  the  mercantile 
meaning  of  the  terms  "gooil,"  and 
"  fine,"  as  applied  to  barley.  Hutchi- 
son V.  Bowker,  5  M.  &  W.  535  ;  Whit- 
more  v.  Coats,  14  Mis.  9.  So  also  as 
to  the  meaning  of  the  word  "  privilege," 
in  an  agreement  with  the  master  of  a 
ship.  Birch  v.  Depeyster,  4  Camp. 
385.  In  Evans  r.  Pratt,  3  M.  &  Gr. 
759,  evidence  was  admitted  to  show 
tliat  "  across  a  country,"  in  a  memoran- 
dum respecting  a  race,  means  that  tlie 
riders  arc  to  go  over  all  obstructions, 
and  are  not  at  lilierty  to  use  a  gate. 
Sec  Slcght  V.  llartshorne,  2  Johns. 
531,  as  to  the  meaning  of  "sea-letter." 


Astor  V.  Union  Ins.  Co.  7  Cow.  202,  as 
to  the  meaning  of  "  furs."  See  also 
Haynes  v.  HoUiday,  7  Bing.  587 ;  Read 
V.  Cranberry,  8  Ired.  109  ;  Barton  v. 
McKelway,  2  N.  Jer.  1 74  ;  Robertson 
V.  Jackson,  2  C.  B.  412;  Vail  v.  Rice, 
1  Seld.  155.  So  in  the  case  of  a  con- 
tract to  sell  "  mess  pork  of  Scott  &  Co.," 
evidence  was  admitted  to  show  that  this 
language  in  the  market  meant  pork 
manufactured  by  Scott  &  Co.  Powell  v. 
Horton,  2  Bing.  N.  C.  668.  Where  a 
contract  was  worded  thus:  "Sold  18 
pockets  Kent  hops,  at  100s.,"  it  was 
permitted  to  be  shown  tliat  by  the  usage 
of  the  hop  trade,  a  contract  so  worded 
was  understood  to  mean  100s.  per  cwt., 
and  not  per  pocket.  Spicer  v.  Cooper, 
1  Q.  B.  424.  Sec  also  Bowman  v.  Hor- 
sey, 2  Mood.  &  Rob.  85.  So  evidence 
has  been  admitted  to  show  that  "  rice  " 
is  not  considered  as  corn  within  the  me- 
morandum of  a  policy  of  insurance. 
Scott  V.  Bourdillion,  5  Bos.  &  Pul.  213. 
See  also  Clayton  v.  Gregson,  5  Ad.  & 
El.  302,  as  to  the  meaning  of  the  word 
"  level  "  among  miners.  And  see  Grant 
V.  Maddox,  15  M.  &  W.  737.  Owing 
to  the  loose  and  inaccurate  manner  in 
M'hich  policies  of  insurance  are  drawn, 
a  class  of  cases  has  sprung  up,  almost 
peculiar  to  this  instrument,  in  which 
evidence  is  admitted  of  usages  between 
the  underwriters  and  the  assured,  affix- 
ing to  certain  words  and  clauses  a 
known  and  definite  meaning.  Thus,  in 
Brough  V.  Wiutmore,  4  T.  R.  206,  on 
evidence  of  the  practice  of  merchants 
and  underwriters,  it  was  hdd  that  provi- 
sions, sent  out  in  a  .ship  for  the  use  of 
the  crew,  were  protected  by  a  policy  on 
the  sliip  and  furniture.  Lord  Kenyan, 
in  giving  judgment,  said  :  —  "I  remem- 
ber it  was  said  many  years  ago,  that  if 
Lombard  Street  had  not  given  a  con- 
struction to  policies  of  insurance,  a  de- 


CII.  I.]  CONSTRUCTION  AND  INTERPRETATION  OP  CONTRACTS.    49 

reason  of  this  is  obvious  enough.  If  parties  enter  into  a 
contract,  by  virtue  whereof  something  is  to  be  done  by  one 
or  both,  and  this  thing  is  often  done  in  their  neighborhood, 
or  by  persons  of  like  occupation  with  themselves,  and  is 
always  done  in  a  certain  way,  it  must  be  supposed  that  they 
intended  it  should  be  done  in  that  way.  The  reason  for  this 
supposition  is  nearly  the  same  as  that  for  supposing  that  the 
common  language  which  they  use  is  to  be  taken  in  its  com- 
mon meaning.  And  the  rule  that  the  meaning  and  intent 
of  the  parties  governs,  wherever  this  is  possible,  comes  in  and 
operates.  Hence  an  established  custom  may  add  to  a  con- 
tract stipulations  not  contained  in  it ;  on  the  ground  that  the 
parties  may  be  supposed  to  have  had  these  stipulations  in 
their  minds  as  a  part  of  their  agreement,  when  they  put  upon 
paper  or  expressed  in  words  the  other  part  of  it.  (z)     So  cus- 


claration  on  a  policy  would  have  been 
had  on  general  demurrer  ;  but  that  the 
uniform  practice  of  merchants  and  un- 
derwriters had  rendered  them  intelligi- 
ble.'' In  Coit  V.  Commercial  Ins.  Co. 
7  Johns.  385,  evidence  was  received  of 
a  usage  among  underwriters  and  mer- 
chants restricting  the  terra  "  roots  "  in 
the  memorandum  of  a  policy  to  such 
articles  as  were  in  their  nature  perish- 
able, and  excluding  sarsaparilla.  See 
also  AUegre's  Adm'rs  v.  Maryland  Ins. 
Co.  2  Gill  &  J.  136;  Allegre  v.  Mary- 
land Ins.  Co.  6  Har.  &  J.  408  ;  Macy  v. 
Whaling  Ins.  Co.  9  Mete.  354 ;  Eyre  v. 
Marine  Ins.  Co.  5  W.  &  S.  116  ;  1  Duer 
on  Ins.  185. 

(z)  "It  has  long  been  settled,"  says 
Parke,  B.,  in  Hutton  v.  Warren,  1  M.  & 
W.  475,  "  that  in  commercial  transac- 
tions, extrinsic  evidence  of  custom  and 
usage  is  admissible  to  annex  incidents 
to  written  contracts  in  matters  with  re- 
spect to  which  they  arc  silent.  The 
same  rule  has  also  been  applied  to  con- 
tracts in  other  transactions  of  life,  in 
which  known  usages  have  been  esta- 
blished and  prevailed,  and  this  has  been 
done  upon  the  principle  of  presumption 
that  in  such  transactions  the  parties  did 
not  mean  to  express  in  writing  the  whole 
of  the  contract  by  which  they  intended 
to  be  bound,  but  a  contract  with  refer- 
ence to  those  known  usages."  Thus,  a 
usage  among  printers  and  booksellers, 
that  a  printer,  contracting  to  print  a 

VOL.  11.  5 


certain  number  of  copies  of  a  work,  is 
not  at  liberty  to  print  from  the  same 
types  while  standing  an  extra  number 
for  [his  own  disposal,  is  admissible. 
Williams  v.  Oilman,  3  Greenl.  276.  So, 
where  bought  and  sold  notes  were  given 
on  a  sale  of  tobacco,  in  an  action  for 
the  price  of  the  tobabco,  it  was  permit- 
ted to  be  shown,  that  by  the  established 
usage  of  the  tobacco  trade,  all  sales 
were  by  sample,  though  not  so  express- 
ed in  the  bought  and  sold  notes.  Sy- 
ers  V.  Jonas,  2  Exch.  111.  See  also 
Hodgson  V.  Davies,  2  Camp.  530  ;  The 
Queen  v.  Inhabitants  of  Stoke-upon- 
Trent,  5  Q.  B.  303 ;  Conner  v.  Robin- 
son, 2  Hill,  [So.  Car.]  354  ;  Whittaker 
V.  Mason,  2  Bing.  N.  C.  359.  —  Where 
goods  are  consigned  to  an  agent  for 
sale,  with  general  instructions  to  remit 
the  proceeds,  it  is  a  sutficient  compli- 
ance with  such  instructions  if  the  agent 
remit  by  bill  of  exchange,  without  in- 
dorsing or  guaranteeing  it,  provided 
such  is  the  usage  at  the  agent's  place  of 
business.  Potter  v.  Morland,  3  Cush. 
384.  See  Putnam  v.  Tillotson,  13  Met. 
517.  But  see  Gross  v.  Criss,  3  Grat. 
262.  —  The  influence  of  local  aistoms  is 
particularly  manifest  in  the  cases  that 
arise  between  landlord  and  tenant. 
"  The  common  law  does  so  little  to  pre- 
scribe the  relative  duties  of  landlord  and 
tenant,  since  it  leaves  the  latter  at  liberty 
to  pursue  any  course  of  management 
he  pleases,  provided  he  is  not  guilty  of 


60 


THE   LAW   OF   CONTRACTS. 


[part  II. 


torn  may  control  and  vary  the  meaning  of  words  ;  {a)  giving 
even  to  such  words  as  those  of  number  a  sense  entirely  dif- 


waste,  that  it  is  by  no  means  surprising 
that  the  courts  should  have  been  favor- 
ably inclined  to  the  introduction  of 
those  i-cgulations  in  the  mode  of  culti- 
vation, -wliich  custom  and  usage  have 
established  in  each  district  to  be  the 
most  beneficial  to  all  parties."  Per 
Parke,  B,  in  Hutton  v.  Warren,  1  M. 
&  W.  476  ;  Lcgh  v.  Hewitt,  4  East,  154. 
In  Wigglesworth  v.  Dallison,  Dougl. 
201,  the  tenant  was  allowed  an  away- 
going  crop,  although  there  was  a  formal 
lease  under  seal.  "The  custom,"  says 
Lord  Mansfield,  "  does  not  alter  or  con- 
tradict the  agreement  in  the  lease,  it 
only  superadds  a  right  which  is  conse- 
quential to  the  taking,  as  a  heriot  may 
be  due  by  custom,  although  not  men- 
tioned in  "the  grant  or  lease."  So  also 
a  custom  to  remove  fixtures  may  be  in- 
corporated into  a  lease.  Van  Ness  v. 
Pacard,  2  Pet.  137.  "Every  demise 
between  landlord  and  tenant,  in  respect 
to  matters  in  which  the  parties  are  si- 
lent, may  be  fairly  open  to  explanation 
by  the  general  usage  and  custom  of  the 
country,  or  of  the  district  where  the 
land  lies."  Per  Stori/,  J.,  Id.  148.  See 
also  Senior  v.  Armitage,  Holt,  197  ; 
Webb  V.  Plummcr,  2  B.  &  Aid.  750; 
Holding  V.  Pigott,  7  Bing.  465  ;  Roberts 
V.  Barker,  I  Cr.  &  M.  808 ;  Wilcox  v. 
Wood,  9  Wend.  346.  — The  common- 
carrier  is  bound  to  deliver  goods  ac- 
cording to  the  usage  of  thie  business  in 
which  he  is  engaged.  Hyde  v.  Trent 
and  Mersey  Nav.  Co.  5  T.  R.  389.  See 
also  ante,  vol.  1,  p.  661,  et  seq.  —  Before 
an  "  incident"  can  be  "  annexed  "  to  a 
contract,  the  contract  itself,  as  made, 
must  be  proved.  Doe  v.  Eason,  11 
Ircd.  568.  —  The  cases  we  have  been 
noticing  are  those  in  which  the  custom 
or  usage  of  trade  has  been  brought  in 
to  atfect  the  construction  of  written  in- 
struments. There  is  another  class  of 
cases  in  which  the  usage  is  not  brought 
in  to  vary  the  construction  of  the  con- 
tract, but  to  "  substitute  in  the  particu- 


lar instance  a  rule  resulting  from  the 
usage,  in  place  of  that  which  the  law, 
not  the  contract  of  the  parties,  would 
prescribe."  1  Duer  on  Ins.  200.  Thus, 
in  the  case  of  a  policy  of  insurance,  if 
the  risks  and  premium  are  entire,  and 
the  policy  has  once  attached,  so  that  the 
insurer  might  in  anj'  case  be  liable  for 
a  total  loss,  the  law  entitles  him  to  re- 
tain the  whole  of  the  premium.  By 
particular  usages,  however,  the  insurer 
may  in  such  cases  be  obliged  to  return 
a  part  of  the  premium.  Long  v-  Allan, 
4  Dougl.  276.  Where  it  is  a  usage  of 
the  underwriter  to  settle  according  to 
the  adjustment  of  general  average  in  a 
foreign  port,  such  usage  will  be  permit- 
ted to  affect  the  rights  of  the  parties, 
although  the  adjustment  in  the  foreign 
port  is  difterent  from  what  it  would 
have  been  at  the  home  port.  2  Phillips 
on  Ins.  (3d  ed.)  p.  163,  ci  seq.;  Power  v. 
Whitmore,  4  M.  &  Sel.  141.  See  also, 
Vallance  v.  Dcwar,  1  Camp.  503.  —  In 
Halsey  v.  Brown,  3  Day,  346,  evidence 
was  admitted  of  a  custom  of  merchants 
in  Connecticut  and  New  York,  that  the 
freight  of  money  received  by  the  master 
is  his  perquisite,  and  that  he  is  to  be 
personally  liable  on  the  contract,  and 
not  the  owners  of  the  vessel.  This  case 
is  cited  and  approved  in  Renncr  v.  Bank 
of  Columbia,  9  Wheat.  591.  See  also 
The  Paragon,  Ware,  322  ;  Ougier  v. 
Jennings,  1  Camp.  505,  n. ;  Barber  v. 
Brace,  3  Conn.  9  ;  Stewart  v.  Aber- 
dein,  4  M.  &  W.  211  ;  McGregor  v.  Ins. 
Co.  of  Penn.  1  Wa.sh.  C.  C  39 ;  Trott 
V.  Wood,  1  Gall.  443  ;  Cope  v.  Dodd, 
13  Penn.  St.  Rep.  37  ;  Cutter  v.  Powell, 
6  T.  R.  320  ;  Raitt  v.  Mitchell,  4  Camp. 
146.  —  Where  bills  or  notes  are  made 
payable  at  certain  banks,  it  is  to  be  pre- 
sumed that  the  parties  intend  that  de- 
mand shall  be  made  and  notice  given 
according  to  the  usages  of  such  banks, 
althougli  the  general  rules  of  the  law 
merchant  may  be  superseded  thereby. 
Thus,  by  the  usage  of  the  banks  of  the 


(a)  Thus,  in  an  action  on  a  policy  of 
insurance  on  a  voyage  "to  any  port  in 
the  Baltic,"  evidence  was  admitted  to 
prove  that  in  mercantile  contracts  the 
Gulf  of  Finland  is  considered  as  within 
the  Baltic.    Uhde  v.  Walters,  3  Camp, 


16.  So  also  that  Mauritius  is  consider- 
ed as  an  East  India  Island,  although 
treated  by  geographers  as  an  African 
island.  Roi)ertson  v.  Money,  R.  & 
Mood.  75  ;  Robertson  v.  Clarke,  1  Bing. 
445. 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    51 

ferent  from  that  which  they  commonly  bear,  and  which  in- 
deed by  the  rules  of  language,  and  in  ordinary  cases,  would 
be  expressed  by  another  word,  {b) 


city  of  Washington,  four  days  grace 
may  be  allowed.  Demand  made  and 
notice  given  in  accordance  Avith  such 
usage  will  be  binding  on  the  indorser, 
even  when  ignorant  of  the  usage.  Mills 
V.  Bank  of  United  States,  11  Wheat. 
431.  See  also  Renner  v.  Bank  of  Co- 
lumbia, 9  Wheat.  581  ;  Bank  of  Wash- 
ington V.  Triplet,  1  Pet.  25  ;  Chicopee 
Bank  v.  Eager,  9  Mete.  583 ;  Planters' 
Bank  v.  Markham,  5  How.  [Miss.]  397  ; 
Lincoln  and  Kennebeck  Bank  v.  Page, 
9  Mass.  155  ;  Bank  of  Columbia  v.  Pitz- 
hugh,  1  H.  &  Gill,  239 ;  Blanchard  v. 
Hilliard,  11  Mass.  85.  In  the  case  of 
the  Bridgeport  Bank  v.  Dyer,  19  Conn. 
136,  the  Bridgeport  Bank,  on  Monday, 
the  1st  of  June,  cashed  for  D.  a  check 
drawn  on  the  Manhattan  Co.  in  New 
York  city.  On  Thursday  the  4th,  in 
accordance  with  the  established  usage 
of  the  Bridgeport  Bank,  it  was  sent  by 
the  captain  of  a  steamboat  to  New 
York.  In  an  action  brought  by  the 
Bridgeport  Bank  against  D.  as  indorser 
of  such  check,  it  was  held  that  such 
usage  was  sufficient  evidence  of  an 
agreement  between  the  parties  not  to 
insist  upon  the  rule  of  law  regarding  the 
transmission  of  checks.  See  also  Kil- 
gore  V.  Bulkley,  14  Conn.  363  ;  and  ge- 

(6)  Thus,  in  the  case  of  Smith  v. 
Wilson,  3  B.  &  Ad.  728,  where  the  les- 
see of  a  rabbit-warren  covenanted  to 
leave  on  the  warren  10,000  rabbits,  the 
lessor  paying  for  them  £60  per  thou- 
sand, it  was  held  that  parol  evidence 
was  admissible  to  show  that,  by  the  cus- 
tom of  the  country  where  the  lease  was 
made,  the  word  thousand,  as  applied  to 
rabbits,  denoted  one  hundred  dozen,  or 
twelve  hundred.  In  Hinton  v.  Locke,  5 
Hill,  437,  Branson,  J.,  said  that  he  should 
have  great  difficulty  in  subscribing  to 
this  case,  on  the  ground  that  the  cus- 
tom sought  to  be  incorporated  into  the 
contract  was  "a  plain  contradiction  of 
the  express  contract  of  the  parties." 
But  the  usage  admitted  in  Hinton  v. 
Locke,  and  sanctioned  by  Bronson,  J., 
seems  to  be  nearly  in  equal  opposition 
to  the  terms  of  the  contract  affected  by 
it.  The  defendant,  in  that  case,  had 
promised  to  pay  the  plaintiff,  who  was  a 


nerally  as  to  the  usages  of  banks,  and 
their  binding  force  upon  parties,  Jones 
V.  Pales,  4  Mass.  245  ;  Peirce  v.  Butler, 
14  Mass.  303;  City  Bank  i'.  Cutter,  3 
Pick.  415  ;  Dorchester  and  Milton  Bank 
V.  New  Eng.  Bank,  1  Cush.  177  ;  Bank 
of  Utica  V.  Smith,  18  Johns.  230 :  Cook- 
endorfer  v-  Preston,  4  How.  317.  —  In 
the  case  of  Pollock  v.  Stables,  12  Q.  B. 
765,  it  was  held,  that  if  a  party  authori- 
zes a  broker  to  buy  shares  for  him  in  a 
particular  market,  where  the  usage  is 
that,  when  a  purchaser  does  not  pay  for 
his  shares  within  a  given  time,  the 
vendor  giving  the  purchaser  notice, 
may  sell,  and  charge  him  with  the  dif- 
ference ;  and  the  broker,  acting  under 
the  authority,  buys  at  such  market  in 
his  own  name ;  such  broker,  if  compell- 
ed to  pay  a  difference  on  the  shares 
through  neglect  of  his  principal  to  sup- 
ply funds,  may  sue  the  principal  for 
money  paid  to  his  use.  And  it  is  not 
necessary,  in  such  action,  to  show  that 
the  principal  knew  of  the  custom.  See 
Bayliffe  v.  Butterworth,  1  Exch.  425 ; 
Sutton  V.  Tatham,  10  Ad.  &  El.  27  ; 
Mitchell  V.  Newhall,  15  M.  &  W.  308; 
Moon  V.  Guardians  of  Whitney  Union, 
3  Bing.  N.  C.  814;  Stewart  v.  Aber- 
dein,  4  M.  &  W.  211. 

carpenter,  twelve  shillings  per  day  for 
every  man  employed  by  him  in  i-epair- 
ing  the  defendant's  house.  Evidence 
was  held  admissible  to  show  that,  by  a 
universal  iisage  among  carpenters,  ten 
hours  labor  constituted  a  datjs  loork. 
So  that  the  plaintiff  was  entitled  to 
charge  one  and  one  fourth  day  for  every 
twenty-four  hours,  within  M'hich  the 
men  worked  twelve  hours  and  one  half. 
Bronson,  J.,  said :  —  "  Usage  can  never 
be  set  up  in  contravention  of  the  con- 
tract ;  but  when  there  is  nothing  in  the 
agreement  to  exclude  the  inference,  the 
parties  are  always  presumed  to  contract 
in  reference  to  the  usage  or  custom  which 
prevails  in  the  particular  trade  or  busi- 
ness to  which  the  contract  relates  ;  and 
the  usage  is  admissible  for  the  purpose  of 
ascertaining  with  greater  certainty  what 
was  intended  by  the  parties.  The  evi- 
dence often  serves  to  explain  or  give 
the   true  meaning  of   some    word    or 


52  THE  LAW   OP  CONTRACTS.  [PART  II. 

This  influence  of  custom  was  first  admitted  in  reference  to 
mercantile  contracts.  And  indeed  almost  the  whole  of  the 
law  merchant,  if  it  have  not  grown  out  of  custom  sanctioned 
by  courts  and  thus  made  law,  has  been  very  greatly  modi- 
fied in  that  way.  For  illustration  of  this,  we  may  refer  to 
the  law  of  bills  and  notes,  insurance,  and  contracts  of  ship- 
ping generally.  And  although  doubts  have  been  expressed 
whether  it  was  wise  or  safe  to  permit  express  contracts  to  be 
controlled,  or,  if  not  controlled,  affected  by  custom  in  the  de- 
gree in  which  it  seems  now  to  be  established  that  they  may 
be ;  (c)  this  operation  of  custom  is  now  fixed  by  law,  and 
extended  to  a  vast  variety  of  contracts  ;  and  indeed  to  all  to 
which  its  privileges  properly  apply.  And  qualified  and 
guarded  as  it  is,  it  seems  to  be  no  more  than  reasonable.  In 
fact,  it  may  be  doubted  whether  a  large  portion  of  the  com- 
mon law  of  England  and  of  thia  country  rests  upon  any 
other  basis  than  that  of  custom.  The  theory  has  been  held 
that  the  actual  foundation  of  the  whole  was  statute  law,  which 
the  lapse  of  time  has  hidden  out  of  sight.  This  is  not  very  pro- 
bable as  a  fact.  The  common  law  is  every  day  adopting  as 
rules  and  principles  the  mere  usages  of  the  community,  or  of 
those  classes  of  the  community  who  are  most  conversant  with 
the  matters  to  which  these  rules  relate ;  it  is  certain  that  a  large 


phrase  of  doubtful  import,  or  which  and  customs  in  a  peculiar  trade  and  busi- 
may  be  understood  in  more  than  one  ness,  and  of  the  understanding  of  witness- 
sense,  according  to  the  subject-matter  es  relative  thereto,  which  has  been  in 
to  which  it  is  applied.  Now  here,  the  former  times  so  freely  resorted  to  ;  but 
plaintiff  was  to  be  paid  for  his  workmen  which  is  now  subjected  by  our  courts  to 
at  the  rate  of  twelve  shillings  per  day  ;  more  exact  and  well  defined  restrictions, 
but  the  parties  have  not  told  us  by  their  Such  evidence  is  often,  very  often,  of  a 
contract  what  they  meant  by  a  day's  loose  and  indeterminate  nature,  founded 
work.  It  has  not  been  pretended  that  upon  very  vague  and  imperfect  notions 
it  necessarily  means  the  labor  of  twen-  of  the  subject ;  and  therefore  it  should, 
ty-four  hours.  How  much,  tlien,  does  as  I  think,  be  admitted  with  a  cautious 
it  mean  ?  Evidence  of  the  usage  or  reluctance  and  scrupulous  jealousy,  as 
custom  was  let  in  to  answer  that  qucs-  it  may  shift  the  whole  grounds  of  the 
tion."  ordinary  interpretation  of  policies  of 
(c)  Per  Lord  Eldon,  in  Anderson  v.  insurance  and  other  contracts."  See 
Pitcher,  2  B.  &  P.  168  ;  per  Lord  Den-  also  remarks  of  the  same  learacd  judge 
raan,  Trueman  v.  Loder,  11  Ad.  «&  El.  in  the  Schooner  Reeside,  2  Sumn.  567  ; 
589,  597  ;  Hutton  v.  Warren,  I  M.  &  Hone  v.  Mutual  Safety  Ins.  Co.  1 
W.  466.  In  liogers  v.  Mechanics  Ins.  Sandf.  137  ;  per  Til'ihmnn,  C.  J.,  in 
Co.  1  Sto.  60.3,  608,  Mr.  Justice  Story  Stoever  v.  Whitman,  6  Binn.  419  ;  per 
uses  the  following  language :  —  "I  own  Gibson,  C.  J.,  in  Snowden  v.  Warder,  3 
mysclfno  friend  to  the  indiscriminate  ad-  Rawle,  101 ;  Bolton  v.  Colder,  1  Watts, 
mission  of  evidence  of  supposed  usages  363. 


CII.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.  53 

proportion  of  the  existing  law  first  acquired  force  in  this  way. 
At  all  events,  even  as  to  all  law,  whether  common  or  sta- 
tute, that  rule  must  be  admitted  which  is  as  sound  as  it  is 
ancient,  and  which  Lord  Coke  emphatically  declares  ;  opli- 
mus  interpres  legum  consuetudo.  (d) 

It  is  obvious  that  the  word  "  custom "  is  used  in  many 
senses,  or  rather  that  it  embraces  very  many  different  degrees 
of  the  same  meaning.  By  it  may  be  understood  that  an- 
cient and  universal,  and  perfectly  established  custom,  which 
is  in  fact  law ;  or  only  a  manner  of  doing  some  particular 
thing,  in  a  small  neighborhood,  or  by  a  small  class  of  men, 
for  a  few  years ;  or  any  measure  of  the  same  kind  of  mean- 
ing within  these  two  extremes.  Nor  is  it  material  what  the 
custom  is  in  this  respect,  provided  it  falls  within  the  reason 
of  the  rule  which  makes  it  a  part  of  the  contract.  And  it 
comes  within  this  reason  only  when  it  is  so  far  established, 
and  so  far  known  to  the  parties,  that  it  must  be  supposed 
that  their  contract  was  made  in  reference  to  it.  For  this 
purpose,  the  custom  must  be  established  and  not  casual,  uni- 
form and  not  varying,  general  and  not  personal,  and  known 
to  the  parties,  (e)     But  the  degree  in  which  these  character- 

(d)  2  Inst.  18.  177  ;  Taylor  v.  Briggs,  2  C.  &  P.  525. 

(e)  Usage  or  custom  must  be  esta-  But  see  Robertson  v.  Jackson,  2  C.  B. 
hlishcd.  Those  customs  which  can  be  412;  Singleton  w.  Hilliard,  1  Strob.  203; 
incorporated  into  contracts,  on  the  Lewis  v.  Marshall,  7  M.  &  Gr.  729 ; 
ground  that  the  parties  must  have  con-  Hayward  v.  Middleton,  3  McCord,  121  ; 
traded  in  reference  to  them,  differ  from  Rapp  u.  Palmer,  3  Watts,  178.  —  Usage 
the  local  customs  of  the  common  law  in  must  be  uniform.  It  must  constantly 
the  length  of  time  they  must  have  ex-  be  observed  in  the  same  manner.  In 
isted  to  be  valid.  "  The  true  test  of  a  Wood  v.  Wood,  1  C.  &  P.  59,  a  usage 
commercial  usage  is  its  having  existed  was  attempted  to  be  shown  relative  to 
a  sufficient  length  of  time  to  have  be-  the  return  of  cloths  sent  for  inspection, 
come  generally  known,  and  to  warrant  Some  of  the  witnesses  spoke  of  three 
a  presumption  that  contracts  are  made  days  as  the  time  within  which  the  buyer 
in  reference  to  it."  Per  Curiam,  in  was  to  say  whether  he  would  buy  them 
Smith  V-  Wright,  1  Caincs,  43.  In  No-  or  not;  others  spoke  of  a  week,  and  one 
blc  V.  Kennoway,  Dougl.  510,  where  of  a  month,  as  the  time.  The  judge  in- 
the  usage  established  by  evidence  had  structed  the  jury,  that  such  a  usage,  to 
existed  for  three  years.  Lord  Mansfield  be  binding,  must  be  uniform,  and  that 
said  :  —  "It  is  no  matter  if  the  usage  the  usage  proved  was  not  so.  The  jury 
has  only  been  for  a  year."  So,  a  found  accordingly.  The  usage  must 
usage  as  to  the  measurement  of  morus  not  be  fluctuating  and  dependent  upon 
multicaulis  trees  has  been  incorporated  price.  Lawrence  v.  McGregor,  Wright, 
into  a  contract,  although  the  trade  in  193.  The  observance  of  the  usage  must 
such  trees  has  existed  only  for  a  short  not  be  occasional.  The  Paragon,  Ware, 
time.  Barton  v.  McKelway,  2  N.  Jer.  322  ;  Rushforth  v.  Hadficld,  7  East,  224. 
165.  See  also  Dorchester  and  Milton  See  also  Trott  v.  Wood,  1  Gall.  443  ; 
Bank  v.  New  England  Bank,  1  Gush.  Martin  v.  Delaware  Ins.  Co.  2  Wash. 

5* 


54  THE   LAW   OF   CONTRACTS.  [PART  11. 

istics  must  belong  to  the  custom  will  depend  in  each  case 
upon  its  peculiar  circumstances.  Suppose  a  contract  to  be 
entered  into  for  the  making  of  an  article  which  has  not  been 
made  until  within  a  dozen  years,  and  only  by  a  dozen  per- 
sons. Words  are  used  in  this  contract,  and  their  meaning  is 
uncertain  ;  but  it  is  proved  that  these  words  have  been  used 
and  understood  in  reference  to  this  article,  always,  by  all 
who  have  ever  made  it,  in  one  way,  and  that  both  parties  to 
the  contract  knew  this.  Then  this  custom  will  be  permitted 
to  explain  and  interpret  the  words  of  the  parties.  But  if  the 
article  had  been  made  an  hundred  years,  in  many  countries, 
and  by  multitudes  of  persons,  the  same  evidence  of  this  use 
of  the  words,  by  a  dozen  persons  for  a  dozen  years,  might 
not  be  sufficient  to  give  to  this  practice  all  the  force  of  cus- 
tom. Other  facts  must  be  considered ;  as  how  far  the  mean- 
ing sought  to  be  put  on  the  words  departs  from  their  com- 
mon meaning  as  given  by  the  dictionary,  or  by  general  use, 
and  whether  other  makers  of  this  article  used  these  words  in 
various  senses,  or  used  other  words  to  express  the  alleged 
meaning.  Because  the  main  question  is  always  this ;  can  it 
be  said  that  both  parties  must  have  used  these  words  in  this 
sense,  and  that  each  party  had  good  reason  to  believe  that 
the  other  party  so  understood  them. 

C.  C.  254  ;  Rapp  u."  Palmer,  3  Watts,  ticular  port  or  place,  and  yet  general  in 
178.  Single  isolated  instances,  unac-  reference  to  the  persons  engaged  in  the 
companied  with  proof  of  general  usage,  trade  in  question.  Baxter  v.  Lcland, 
will  be  insufficient  to  establish  a  cus-  1  Blatchf.  C.  C.  526.  Where  a  usage 
torn.  Cope  V.  Dodd,  13  Penn.  St.  Rep.  between  insurers  and  insured  is  offered 
33  ;  United  States  v.  Buchanan,  8  How.  in  evidence,  it  must  be  the  usage  of  the 
83,  102. — Usage  must  be  general.  In  port  where  the  policy  is  effected.  Ro- 
order  that  a  custom  may  be  incorpora-  gers  v.  Mechanics  Ins.  Co.  1  Sto.  607  ; 
ted  into  an  agreement,  by  force  of  its  Child  v.  Sun  Mutual  Ins.  Co.  3  Sandf. 
existence,  it  must  be  shown  to  be  so  ge-  26.  —  The  usage  must  be  general  as  op- 
neral,  that  a  presumption  of  knowledge  posed  to  partial,  or  personal.  Where  it 
on  the  part  of  the  parties  arises.  It  has  reference  to  the  commercial  mean- 
must  be  general  as  opposed  to  local,  for  ing  of  a  word,  or  to  a  usage  of  trade 
local  usages  cannot  be  brought  in  to  proper,  that  is,  to  a  particular  manner 
affect  the  construction  of  written  instru-  of  doing  a  thing,  it  must  be  general 
ments,  unless  the  knowledge  of  the  among  all  those  merchants,  in  the  same 
parties  is  found.  Bartlett  v.  Pentland,  country,  by  whom  the  word  is  used,  or 
10  B.  &  Cr.  760,  770;  Gabay  v.  Lloyd,  who  are  engaged  in  the  trade  in  qucs- 
3  B.  &  Cr.  793 ;  Scott  v.  Irving,  1  B.  &  tion.  Martin  v.  Delaware  Ins.  Co.  2 
Ad.  605;  Stevens  v.  Reeves,  9  Pick.  Wash.  C.  C.  254;  Trott  v.  Wood,  1 
198;  Claytons.  Gregson,  5  Ad.  &  El.  Gall.  443;  Macy  v.  Whaling  Ins.  Co. 
302.  A  usage,  however,  may  be  local  9  Mete.  354,  365 ;  Wood  v.  Wood,  1  C. 
in  the  sense  of  being  confined  to  a  par-  &  P.  59. 


en.  I.]     CONSTRUCTION  AND  INTERPRETATION  OP  CONTRACTS.         55 


Nor  is  it  necessary  that  the  word  which  it  is  sought  to  in- 
terpret by  custom  should  be,  of  itself,  ambiguous.  (/)  For 
not  only  will  custom  explain  an  ambiguity,  but  will  change 
the  sense  of  a  word  from  one  which  it  bears  almost  univer- 
sally, to  another  which  is  entirely  different.  Thus  words  of 
number  are  of  all  others  least  ambiguous  ;  but,  as  we  have 
seen,  custom  will  interpret  one  thousand  to  mean  one  hun- 
dred dozen,  or  twelve  hundred.  ("-) 

Custom  and  usage  are  very  often  spoken  of  as  if  they  were 
the  same  thing.  But  this  is  a  mistake.  Custom  is  the  thing 
to  be  proved,  and  usage  is  the  evidence  of  the  custom,  (h) 
Whether  a  custom  exists  is  a  question  of  fact,  (i)     But  in 


(/)  See  ante,  p.  51,  n.  (b).  Where 
words  or  clauses  are  doubtful  in  their 
meaning,  much  slighter  evidence  of 
usage  will  suffice  to  fix  and  determine 
their  meaning.  1  Duer  on  Ins.  254. 
Where  goods  on  board  a  vessel  are  in- 
sured "  until  discharged  and  safely  land- 
ed," a  resort  to  usage  seems  necessary 
to  fix  the  meaning  of  the  clause  "  until 
discharged  and  safely  landed,"  the  mode 
of  discharge  being  dependent  upon  the 
usual  course  of  the  trade,  and  hence 
slighter  evidence  will  be  required.  No- 
ble V.  Kennoway,  Dougl.  510.  Such  is 
also  the  case  where  the  usage  of  the 
port  of  departure  is  followed  in  taking 
in  the  cargo  of  a  ship.  Kingston  v. 
Knibbs,  1  Camp.  508,  n.  See  also  Bar- 
ton V.  McKelway,  2  N.  Jer.  165.  This 
was  an  action  on  a  contract  to  deliver  a 
number  of  morus  multicaulis  trees,  of 
"  not  less  than  one  foot  high."  It  was 
held,  that  it  might  be  shown  that  by  the 
universal  usage  and  custom  of  all  deal- 
ers in  that  article,  the  length  was  mea- 
sured to  the  top  of  the  ripe  wood,  re- 
jecting the  green  immature  top.  See 
also  Moxon  v.  Atkins,  3  Campb.  200. 

(g)  See  ante,  p.  51,  n.  (6). 

(h)  Per  Bayley,  J.,  in  Kead  v.  Rann, 
10  B.  &  Cr.  440. 

(i)  The  custom  must  be  established 
by  the  evidence  of  witnesses  who  speak 
directly  to  the  fact  of  the  existence  of 
the  custom.  In  Lewis  v.  Marshall,  7 
M.  &  Gr.  729,  evidence  was  offered  to 
show  that  the  terms  "  cargo "  and 
"  freight "  would  be  considered  to  com- 
prise steerage  passengers  and  the  net 
profit  arising  from  their  passage-money. 
Tindal,  C.  J.,  said: — "  The  character 
and  description  of  evidence  admissible 


for  that  purpose  is  the  fact  of  a  general 
usage  and  practice  prevailing  in  the 
particular  trade  or  business,  not  the 
judgment  or  opinion  of  the  witnesses ; 
for  the  contract  may  be  safely  and  cor- 
rectly interpreted  with  i*eference  to  the 
fact  of  usage ;  as  it  may  be  presumed 
that  such  fact  is  known  to  the  contract- 
ing parties,  and  that  they  contract  in 
conformity  thereto.  But  the  judgment 
or  opinion  of  the  witnesses  called  affords 
no  safe  guide  for  interpretation,  as  such 
judgment  or  opinion  is  confined  to  their 
own  knowledge."  "  The  custom  of  mer- 
chants or  mercantile  usage  does  not 
depend  upon  the  private  opinions  of 
merchants  as  to  what  the  law  is,  or  even 
upon  their  opinions  publicly  expressed 
—  but  upon  their  actsy  Per  Walworth, 
C,  in  Allen  v.  Merchants  Bank,  22 
Wend.  222.  See  Edie  v.  East  India 
Co.  2  Burr.  1228;  Syers  v.  Bridge, 
Dougl.  527,  530;  Crofts  v.  Marshall,  7 
C.  &  P.  597 ;  Winthrop  v.  Union  Ins. 
Co.  2  Wash.  C.  C.  7 ;  Kogers  v.  Mecha- 
nics Ins.  Co.  1  Sto.  603,  607.  Although 
a  witness  testifies  generally  to  the  fact 
of  the  usage,  yet  if  he  is  unable  to  state 
a  particular  instance  of  the  observance 
of  the  usage,  his  evidence  should  be  re- 
jected. Per  Lord  Mansfield,  in  Syers 
V.  Bridge,  Dougl.  530 ;  1  Duer  on  Ins. 
183.  See  Vail  v.  Rice,  1  Seld.  155. 
On  the  other  hand,  particular  instances 
in  which  a  certain  meaning  has  been 
given  to  certain  words,  or  a  certain 
course  followed,  are  of  no  avail  in  esta- 
blishing a  cHstom,  when  unaccompanied 
by  evidence  direct  to  the  fact  of  usage. 
Cope  V.  Dodd,  13  Penn.  St.  Rep.  33 ; 
Duvall  V,  Farmers  Bank  of  Maryland, 
9  Gill  &  Johns.  31. 


56  THE   LAW   OF   CONTRACTS.  [PART  II. 

the  proof  of  this  fact  questions  of  law  of  two  kinds  may  arise. 
One,  whether  the  evidence  is  admissible,  which  is  to  be  set- 
tled by  the  common  principles  of  the  law  of  evidence.  The 
other,  whether  the  facts  stated  are  legally  sufiicient  to  prove 
a  custom.  If  one  man  testified  that  he  had  done  a  certain 
thing  once,  and  had  heard  that  his  neighbor  had  done  it  once, 
this  evidence  would  not  be  given  to  the  jury  for  them  to 
draw  from  it  the  inference  of  custom  if  they  saw  fit,  because 
it  would  be  legally  insufficient.  But  if  many  men  testified 
to  a  uniform  usage  within  their  knowledge,  and  were  uncon- 
tradicted, the  court  would  say  whether  this  usage  was  suffi- 
cient in  quantity  and  quality  to  establish  a  custom,  and  if 
they  deemed  it  to  be  so,  would  instruct  the  jury,  that,  if  they 
believed  the  witnesses,  the  custom  was  proved.  The  cases 
on  this  subject  are  numerous.  But  no  definite  rule  as  to  the 
proof  of  custom  can  be  drawn  from  them,  other  than  that 
derivable  from  the  reason  on  which  the  legal  operation  of 
custom  rests ;  namely,  that  the  parties  must  be  supposed  to 
have  contracted  with  reference  to  it. 

As  a  general  rule,  the  knowledge  of  a  custom  must  be 
brought  home  to  a  party  who  is  to  be  affected  by  it.  But 
if  it  be  shown  that  the  custom  is  ancient,  very  general  and 
well  known,  it  will  often  be  a  presumption  of  law  that  the 
party  had  knowledge  of  it;  (j)  although  if  the  custom  ap- 

( j)  Where  a  custom  is  found  to  be  tlerlale,  J.,  said :  —  "If  the  arbitrator 
general  and  notorious,  and  to  have  the  had  followed  the  words  of  the  order, 
other  requisites  of  a  valid  custom,  it  is  and  found  that  the  word  'level'  (which 
a  conclusion  of  law  that  the  parties  is  capable  of  many  different  meanings) 
must  have  contracted  with  reference  to  meant  '  according  to  the  custom  and 
it,  and  their  knowledge  is  conclusively  understanding  of  miners '  so  and  so  ; 
presumed.  In  Clayton  i\  Gregson,  5  judgment  might  have  been  given  for  the 
A.  &  El.  302,  an  arbitrator  found  that  defendant;  there  would  have  been  a  re- 
according  to  the  custom  and  under-  suit  in  law  in  his  favor.  But  the  find- 
standing  of  miners  throughout  a  cer-  ing  is  limited  to  a  particular  district  ; 
tain  district,  the  words  "  level,"  "  deeper  which  is  as  much  as  to  say  that  the 
than,"  and  "  below,"  in  a  lease,  had  word  which  lias  a  particular  significa- 
certain  meanings,  which  were  in  favor  tion  in  this  district  may  mean  diffcrent- 
of  one  of  the  parties  to  the  suit.  Some  ly  in  others ;  and  if  that  be  so,  it  cannot 
of  the  parties  to  the  lease  did  not  live  follow  as  an  inference  of  law  that  in  the 
within  the  district.  Held,  that  the  ex-  present  contract  it  was  used  in  the  sense 
istcnce  of  tlie  custom  stated,  within  pointed  out.  It  ought,  therefore,  to  be 
sucii  district,  did  not  raise  a  conclusion  shown  as  a  matter  of  fact  that  tlie  par- 
of  law  that  the  covenanting  parties  used  ties  so  used  it."  See  also  Stevens  v. 
the  terms  according  to  such  custom,  Kecves,  9  Pick.  198;  Ilinton  y.  Locke, 
but  was  only  evidence  from  whicli  a  5  Hill,  439 ;  1  Duer  on  Ins.  277.  But 
jury  might  draw  that  conclusion.    Lit-  see  Winsor  v.  Dillaway,  4  Mete.  221. 


en,  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    57 


peared  to  be  more  recent,  and  less  generally  known,  it  might 
be  necessary  to  establish  by  independent  proof  the  knowledge 
of  this  custom  by  the  party,  (k)  And  one  of  the  most  com- 
mon grounds  for  inferring  knowledge  in  the  parties,  is  the 
fact  of  their  previous  similar  dealings  with  each  other.  (/) 
The  custom  might  be  so  perfectly  ascertained  and  universal 
that  the  party's  actual  ignorance  could  not  be  given  in  proof, 
nor  assist  him  in  resisting  a  custom.  If  one  sold  goods,  and 
the  buyer  being  sued  for  the  price,  defended  on  the  ground 
of  a  custom  of  three  months  credit,  the  jury  might  be  in- 
structed that  the  defence  was  not  made  out,  unless  they 
could  not  only  infer  from  the  evidence  the  existence  of  the 
custom,  but  a  knowledge  of  it  by  the  plaintiff.  But  if  the 
buyer  had  given  a  negotiable  note  at  three  months,  no  igno- 
rance of  the  seller  would  enable  him  to  demand  payment 
without  grace,  even  where  the  days  of  grace  were  not  given 
by  statute.  In  such  a  case,  the  reason  of  the  law  of  cus- 
tom—  that  the  parties  contracted  with  reference  to  it  — 
seems  to  be  lost  sight  of.  But  in  fact  the  custom  in  such  a 
case  has  the  force  of  law  ;  (m)  an  ignorance  of  which  neither 
excuses  any  one,  nor  enlarges  his  rights. 

No  custom  can  be  proved,  or  permitted  to  influence  the 
construction  of  a  contract,  or  vary  the  rights  of  parties,  if  the 
custom  itself  be  illegal.  For  this  would  be  to  permit  parties 
to  break  the  law  because  others  had  broken  it ;  and  then  to 
found  their  rights  upon  their  own  wrongdoings,  (n) 


(k)  Clayton  v.  Gregson,  5  A.  &  El. 
302 ;  Scott  V.  Irving,  1  B.  &  Ad.  605 ; 
Stevens  u.  Reeves,  9  Pick.  198;  Stew- 
art V.  Aberdein,  4  M.  &  W.  211. 

{I)  As  that  one  of  the  parties  was  ac- 
customed to  effect  insurance  at  a  cer- 
tain place,  or  with  a  certain  company. 
Gabay  v.  Lloyd,  3  B.  &  Cr.  793  ;  Bart- 
lett  V.  Pentland,  10  B.  &  Cr.  760  ;  Palm- 
er i).  Blackburn,  1  Bing.  61.  Or  that 
parties  were  accustomed  to  transact  bu- 
siness at  a  certain  bank.  Bridgeport 
Bank  v.  Dyer,  19  Conn.  136.  Or  that 
the  parties  reside  at  the  place  where  the 
usage  exists.  Bartlett  v.  Pentland,  10 
B.  &  Cr.  760;  Clayton  v.  Gregson,  5 
Ad.  &  El.  302  ;  Stevens  v.  Reeves,  9 
Pick.  198.  Evidence  maybe  givCn  of 
former  transactions  between  the  same 
parties  for  the  purpose  of  explaining  the 


meaning  of  the  terms  used  in  a  written 
contract.  Bourne  v.  Gatliff,  11  CI.  & 
Fin.  45,  70.  But  see  Ford  v.  Yates,  2 
M.  &  Gr.  549,  where  evidence  was  re- 
jected that  by  the  usual  course  of  deal- 
ing between  the  parties,  hops  were  sold 
on  a  credit  of  six  months.  The  written 
contract  was  silent  upon  the  subject. 
Previous  dealings  of  parties  are  admis- 
sible, to  give  a  more  extended  lien  than 
that  given  by  the  common  law.  Rush- 
forth  V.  Hadfield,  7  East,  224.  See 
Loring  v.  Gurney,  5  Pick.  15. 

(m)  It  may,  however,  be  superceded 
by  a  custom  allowing  four  days  grace. 
Mills  V.  Bank  of  United  States,  11 
Wheat.  431  ;  Cookenderfer  v.  Preston, 
4  How.  317. 

(h)  See  1  Duer  on  Ins.  272. 


58  THE   LAW   OF   CONTRACTS.  [PART  II. 

Neither  would  courts  sanction  a  custom,  by  permitting  its 
operation  upon  the  rights  of  parties,  which  was  in  itself 
wholly  unreasonable,  (o)  In  relation  to  a  law,  properly 
enacted,  this  inquiry  cannot  be  made  in  a  country  where  the 
judicial  and  the  legislative  powers  are  properly  separated. 
But  in  reference  to  custom,  which  is  a  quasi  law,  and  has 
often  the  effect  of  law,  but  has  not  its  obligatory  power 
over  the  court,  the  character  of  the  custom  will  be  consider- 
ed, and  if  it  be  altogether  foolish,  or  mischievous,  the  court 
will  not  regard  it ;  and  if  a  contract  exist  which  only  such  a 
custom  can  give  effect  to,  the  contract  itself  will  be  declared 
void. 

Lastly,  it  must  be  remembered  that  no  custom,  however 
universal,  or  old,  or  known,  unless  it  has  actually  passed 
into  law,  has  any  force  over  parties  against  their  will.  Hence, 
in  the  interpretation  of  contracts,  it  is  an  established  rule, 
that  no  custom  can  be  admitted  which  the  parties  have  seen 
fit  expressly  to  exclude,  (p)  Thus,  to  refer  again  to  the  cus- 
tom of  allowing  grace  on  bills  and  notes  on  time,  there  is  no 
doubt  that  the  parties  may  agree  to  waive  this  ;  and  even  the 
statutes  which  have  made  this  custom  law  permit  this  waiver. 
And  not  only  is  a  custom  inadmissible  which  the  parties 
have  expressly  excluded,  but  it  is  equally  so  if  the  parties 
have  excluded  it  by  a  necessary  implication  ;  as  by  providing 

(o)  A  usage   among  the  owners  of  v.  Graves,  1  Mills  Const.  R.  [So.  Car.] 

vessels  at  particular  ports  to  pay  bills  308 ;  Spear  v.  Newell,  cited  in  Burton  v. 

drawn  by  masters  for  supplies  furnished  Blin,  23  Verm.   159;  Bryant  v.  Com- 

to  their  vessels  in  foreign  ports,  cannot  monwealth  Ins.  Co.  6  Pick.  131.    For 

bind  them  as  acceptors  of  such   bills,  instances  in  which  usages  have  been 

"A  usage,  to  be  legal,  must  be  reason-  held  reasonable,  see  Clark  v.  Baker,  11 

able  as  well  as   convenient;   and  that  Mete  186;  Thomas  v.  O'llara,  1  Mills 

usage  cannot  be  reasonable  which  puts  Const.  E.  [So.  Car.]  303;  Williams  v. 

at  hazard  the  property  of  the  owners  at  Oilman,    3    Grecnl.    276  ;    Bi'idgcport 

the  pleasure  of  the  master,  by  making  Bank  y.  Dyer,  19   Conn.  136;  Conner 

them  responsible  as  acceptors  on  bills  v.   llobinson,  2   Hill,    [So.    Car.]    354. 

drawn  by  him,  and  which  have  been  ne-  Whether  a  usage  is  reasonable  would 

gotiated   on   the   assumption  that  the  seem  to  be  a  question  of  law.     1  Duer 

funds  were  needed  for  supplies  or  re-  on  Ins.  269.     Sec  remarks  of  Tindal, 

pairs  ;  and  no  evil  can  flow  from  reject-  C.  J.,  in  Bottomlcy  v.  Forbes,  5  Bing. 

ing  such  a  usage."     Per  Hubbard,  j.,  in  N.  C.   127.     And  see  Bowen  v.  Stod- 

Bowen  v.  Stoddard,  10  Mete.  375.     So  dard,  10  Mete.  375.     The  question  of 

a  usage  among  plaisterers  to  charge  half  the  reasonableness  of  a  usage  was  left 

the   size  of  the  windows  at  the  price  to  the  jury  by  Lord  Ehlon  in  Ougier  v. 

agreed  on  for  work  and  materials  is  un-  Jennings,  1  Camp.  505,  n.  (a). 
reasonable  android.     Jordan  v.  Mere-        (;>)  l^nox   i'.   The  Niuctta,  Crabbe, 

dith,  3  Yeates,  318.     Sec  also  Thomas  534.     See  infra,  n.  (q). 


en.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    59 

that  the  thing  which  the  custom  affects  shall  be  done  in  a 
different  way.  (q)  For  a  custom  can  no  more  be  set  up 
against  the  clear  intention  of  the  parties  than  against  their 
express  agreement. 


SECTION  X. 

OF  THE   ADMISSIBILITY   OF   EXTRINSIC   EVIDENCE    IN   THE   INTER- 
PRETATION  OF   WRITTEN   CONTRACTS. 

It  is  very  common  for  parties  to  offer  evidence  external  to 
the  contract,  in  aid  of  the  interpretation  of  its  language. 


(q)  A  usage  cannot  be  incorporated 
into  a  contract,  which  is  inconsistent 
with  the  terms  of  the  contract.  In  the 
case  of  the  Schooner  Reeside,  2  Sumn. 
567,  it  was  attempted  to  vary  the  com- 
mon bill  of  lading,  by  which  goods  were 
to  be  delivered  in  good  order  and  con- 
dition, the  danger  of  the  seas  only  excepted, 
by  establishing  a  custom,  that  the  own- 
ers of  packet  vessels  between  New  York 
and  Boston  should  be  liable  only  for 
damage  to  goods  occasioned  by  their 
own  neglect.  But,  per  Story,  J.,  "  the 
true  and  appropriate  office  of  a  usage 
or  custom  is,  to  interpret  the  otherwise 
indeterminate  intentions  of  parties,  and 
to  ascertain  the  nature  and  extent  of 
their  contracts,  arising  not  from  express 
stipulations,  but  from  mere  implications 
and  presumptions,  and  acts  of  a  doubt- 
ful or  equivocal  character.  It  may  also 
be  admitted  to  ascertain  the  true  mean- 
ing of  a  particular  word,  or  of  particu- 
lar words  in  a  given  instrument,  when 
the  word  or  words  have  various  senses, 
some  common,  some  qualified,  and  some 
technical,  according  to  the  subject-mat- 
ter to  which  they  are  applied.  But  I 
apprehend  that  it  can  never  be  proper 
to  resort  to  any  usage  or  custom  to  con- 
trol or  vary  the  positive  stipulations  in 
a  written  contract,  and  a  fortiori,  not  in 
order  to  contradict  them.  An  express 
contract  of  the  parties  is  always  admis- 
sible, to  supersede,  or  vary,  or  control, 
a  usage  or  custom ;  for  the  latter  may 
always  be  waived  at  the  will  of  the  par- 
tics.  But  a  written  and  express  con- 
tract cannot  be  controlled,  or  varied,  or 


contradicted,  by  a  usage  or  custom ;  for 
that  would  not  only  be  to  admit  parol 
evidence  to  control,  vary,  or  contradict 
written  contracts,  but  it  would  be  to 
allow  mere  presumptions  and  implica- 
tions, properly  arising  in  the  absence  of 
any  positive  expressions  of  intention  to 
control,  vary,  or  contradict  the  most 
formal  and  deliberate  written  declara- 
tions of  the  parties."  See  Blackett  v. 
Royal  Exch.  Assur.  Co.  2  Cr.  &  Jer. 
244 ;  Hinton  v.  Locke,  5  Hill,  437 ; 
Grant  v.  Maddox,  15  M.  &  W.  737; 
Y''ates  V.  Pym,  6  Taunt.  446  ;  Keener  v. 
Bank  of  United  States,  2  Barr,  237  ; 
McGregor  v.  Ins.  Co.  of  Penn.  1  Wash. 
C.  C.  39;  Sweet  v.  Jenkins,  1  Rhode 
Is.  147.  A  custom,  that  a  tenant  on 
quitting  shall  leave  the  manure  to  be 
expended  upon  the  land,  he  being  enti- 
tled to  be  paid  for  the  same,  is  excluded 
by  an  express  stipulation  in  the  lease 
that  the  tenant  "  should  not  sell  or  take 
away  any  of  the  manure."  The  tenant 
is  not  entitled  to  recover  the  value  of 
the  manure  so  left.  "  It  was  altogether 
idle,"  said  Lord  Lyndhurst,  C.  B.,  "  to 
provide  for  one  part  of  that  which  was 
sufficiently  provided  for  by  the  custom, 
unless  it  was  intended  to  exclude  the 
other  part."  Roberts  v.  Barker,  1  Cr. 
&  M.  808.  See  also  Webb  v.  Plummcr, 
2  B.  &  Aid.  746.  A  custom  of  the 
countiy,  by  which  the  tenant  of  a  farm, 
cultivating  it  according  to  the  course 
of  good  husbandry,  is  entitled  on  quit- 
ting to  receive  from  the  landlord  or  in- 
coming tenant  a  reasonable  allowance 
for  seeds  and  labor  bestowed  on  the  ara- 


60  •        THE  LAW   OF  CONTRACTS.  [PART  II. 

The  general  rule  is,  that  such  evidence  cannot  be  admitted 
to  contradict  or  vary  the  terms  of  a  valid  written  contract ; 
or,  as  the  rule  is  expressed  by  writers  on  the  Scotch  law, 
"  writing  cannot  be  cut  down  or  taken  away  by  the  testi- 
mony of  witnesses."  (r)  There  are  many  reasons  for  this 
rule.  One  is,  the  general  preference  of  the  law  for  written 
evidence  over  unwritten  ;  or,  in  other  words,  for  the  more 
definite  and  certain  evidence  over  that  which  is  less  so ;  a 
preference  which  not  only  makes  written  evidence  better 
than  unwritten,  but  classifies  that  which  is  written.  For  if 
a  negotiation  be  conducted  in  writing,  and  even  if  there 
be  a  distinct  proposition  in  a  letter,  and  a  distinct  assent, 
making  a  contract ;  and  then  the  parties  reduce  this  contract 
to  writing,  and  both  execute  the  instrument,  this  instrument 
controls  the  letters,  and  they  are  not  permitted  to  vary  the 
force  and  effect  of  the  instrument,  although  they  may  some- 
times be  of  use  in  explaining  its  terms.  Another  is,  the 
same  desire  to  prevent  fraud  which  gave  rise  to  the  statute 
of  frauds;  for  as  that  statute  requires  that  certain  contracts 
shall  be  in  writing,  so  this  rule  refuses  to  permit  contracts 
which  are  in  writing  to  be  controlled  by  merely  oral  evi- 
dence. But  the  principal  cause  alleged  in  the  books  and 
cases  is,  that  when  parties,  after  whatever  conversation  or 
preparation,  at  last  reduce  their  agreement  to  writing,  this 
may  be  looked  upon  as  the  final  consummation  of  their  ne- 
gotiation, and  the  exact  expression  of  their  purpose.  And 
all  of  their  earlier  agreement,  though  made  apparently  while 
it  all  lay  in  conversation,  which  is  not  now  incorporated 
into  their  written  contract,  may  be  considered  as  intention- 
ally rejected,  (s)     The  parties  write  the  contract  when  they 

ble  land  in  the  last  year  of  the  tenancy,  197;  Syers  r.  Jonas,  2  Exch.  111.  If 
and  is  hound  to  leave  the  manure  for  the  legislature  has  given  to  a  particular 
the  landlord  if  he  will  purchase  it, —  is  word  denoting  quantity  a  definite  mean- 
not  excluded  hy  a  stipulation  in  the  ing,  no  evidence  of  usage  can  be  given 
lease  under  which  he  holds,  that  he  will  to  show  that  it  is  used  in  a  different 
consume  three  fourths  of  the  hay  .ind  sense.  Smith  i'.  Wilson,  3  B.  &  Ad. 
straw  on  the  farm,  and  spread  the  ma-  728.  See  Helm  v.  Bryant,  11  B.  Mon. 
nurc  arising  therefrom,  and  leave  such  64 ;  and  note  to  Wigglesworth  v.  Dalli- 
of  it  as  shall  not  be  so  spread  on  the  son,  1  Smith's  Lead.  Cas.  308  b. 
land  for  the  use  of  the  landlord,  on  re-  (>)  Tail  on  Ev.  326. 
ceiving  a  rea,sonat)le  price  for  it.  Hut-  (s)  Preston  v.  Merccau,  2  Wm.  Bl. 
ton  v.  Warren,  1  M.  &  W.  466.  See  1249;  Carter  v.  Hamilton,  11  Barb, 
also  Senior  v.  Armitage,  Holt,  N.  P.  147  ;  The  Troy  Iron  and  Nail  Factory 


CII.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    61 

are  ready  to  do  so,  for  the  very  purpose  of  including  all  that 
they  have  finally  agreed  upon,  and  excluding  every  thing 
else,  and  making  this  certain  and  permanent.  And  if  every 
written  contract  "were  held  subject  to  enlargement,  or  other 
alteration,  according  to  the  testimony  which  might  be  offered 
on  one  side  or  the  other  as  to  previous  intention,  or  collateral 
facts,  it  would  obviously  be  of  no  use  to  reduce  a  contract 
to  writing,  or  to  attempt  to  give  it  certainty  and  fixedness  in 
any  way.  (t) 

It  is  nevertheless  certain  that  some  evidence  from  without 
must  be  admissible  in  the  explanation  or  interpretation  of 
every  contract.  If  the  agreement  be  that  one  party  shall 
convey  to  the  other,  for  a  certain  price,  a  certain  parcel  of 
land,  it  is  only  by  extrinsic  evidence  that  the  persons  can  be 
identified  who  claim  or  are  alleged  to  be  parties,  and  that  the 
parcel  of  land  can  be  ascertained.  It  may  be  described  by 
bounds,  but  the  question  then  comes,  where  are  the  streets, 
or  roads,  or  neighbors,  or  monuments  referred  to  in  the  de- 
scription ;  and  it  may  sometimes  happen  that  much  evidence 
is  necessary  to  identify  these  persons  or  things.  Hence  we 
may  say,  as  the  general  rule,  that  as  to  the  parties  or  the 
subject-matter  of  a  contract,  extrinsic  evidence  may  and  must 
be  received  and  used  to  make  them  certain,  if  necessary  for 
that  purpose,  (u)     But  as  to  the  terms,  conditions,  and  limit- 

V.  Corning,  1  Jilatch.  C.  C.  467 ;  Meres  port  the  certain  truth  of  tlie  agreement 

V.  Ansell,  3  Wils.  275 ;  Hakes  v.  Hotch-  of  the  parties,  should  be  controlled  by 

kiss,  23  Verm.  231  ;  Vermont  Central  averment  of  the  parties,  to  be  proved  by 

R.  II.  Co.  V.  Estate  of  Hills,  Id.  681.  the  uncertain  testimony  of  slippery  me- 

"  Where  the  whole  matter  passes  in  pa-  mory."     Countess  of  Rutland's  case,  5 

rol,  all  that  passes  may  sometimes  be  Rep.  26  a;  Carter  u.  Hamilton,  II  Barb, 

taken  together  as  forming  parcel  of  the  147  ;  Rogers  v.  Atkinson,  1  Georg.  12  ; 

contract,   though   not  always,   because  Wynn  v.  Cox,  5  Georg.  373. 

matter  talked  of  at  the  commencement  (u)  "When  there  is  a  devise  of  the 

of  a  bargain  may  be  excluded  by  the  estate  purchased  of  A.,  or  of  the  farm 

language  used  at  its  termination.     But  in  the  occupation  of  B.,  nobody  can  tell 

if  the  contract  be  in  the  end  reduced  into  what  is  given  till  it  is  shown  by  extrin- 

writing,  nothing  which  is  not  found  in  sic  evidence  what  estate  it  was  that  was 

the  writing  can  be  considered  as  a  part  purchased  of  A.,  or  what  farm  was  in 

of  the  contract."     'Pev  Abbott,  C  J.,  in  the  occupation  of  B."     Per  Sir  William 

Kain  v.  Old,  2  B.  &  Cr.  634.     See  also  Grant,  in  Sanford  v.  Raikes,  1  Mer.  653. 

Vandervoort  v.  Smith,  2  Caines,  155;  And  see  Jackson  r.  Parkhurst,  4  Wend. 

Muraford  v.  McPherson,  1  Johns.  413  ;  369  ;  Abbot  v.  Massie,  3  Ves.  148  ;  Mc- 

Pickcring  v.  Dowson,  4  Taunt.  786.  CuUough  v.  Waiuwright,  14  Penn.  St. 

(t)  "It  would   be  inconvenient  that  171; Newton w. Lucas, (B Sim. 54; Jackson 

matters  in  writing,  made  by  advice  and  i'.  Sill,  11  Johns.  201.     "  Speaking  phi- 

on  consideration,  and  which  finally  im-  losophically,"  says  Rolfe,  B.,  "  you  must 

VOL.  II.  6 


62 


THE   LAW   OF   CONTRACTS. 


[part  II. 


ations  of  the  agreement,  the  written  contract  must  speak 
exclusively  for  itself.  Hence,  too,  a  false  description  of 
person  or  thing  has  no  effect  in  defeating  a  contract,  if  the 
error  can  be  distinctly  shown  and  perfectly  corrected,  by 
other  matter  in  the  instrument,  (v) 


always  look  beyond  the  instrument  it- 
self to  some  extent,  in  order  to  ascertain 
who  is  meant ;  for  instance,  you  must 
look  to  names  and  places.  There  may 
indeed  be  no  difficulty^  in  ascertaining 
who  is  meant,  when  a  person  who  has 
five  or  six  names,  and  some  of  them  un- 
usual ones,  is  described  in  full,  while  on 
the  other  hand,  a  devise  simply  to  John 
Smith  would  necessarily  create  some 
uncertainty."  Claj-ton  v.  Lord  Nugent, 
13  M.  &  'W.  207.  See  also  Owen  v. 
Thomas,  3  M.  &  K.  353.  AVhether 
parcel  or  not,  or  apjiurteijant  or  not,  is 
always  matter  of  evidence.  Per  Bidler, 
J.,  in  Doe  v.  Burt,  1  T.  R.  704 ;  Doe  v. 
Webster,  12  Ad.  &  El.  442;  Water- 
man r.  Johnson.  13  Pick.  261  ;  per  Ba?-- 
loia;  J.,  in  Bradley  r.  Wash.  A.  &  G. 
Steam  Packet  Co.  13  Pet.  89,  97  ;  per 
Lord  Ellenborough,  in  Goodtitle  v.  South- 
ern, 1  M.  &  S.'301 ;  Wilson  v.  Robert- 
son, Harp.  Eq.  56. 

{v)  Bac.  Max.  Reg.  25.  Falsa  de- 
vionstratio  non  nocet.  Thomas  r.  Tho- 
mas, 6  T.  R.  671.  "If  the  thing  de- 
scribed is  sufficiently  ascertained,  it  is 
sufficient,  though  all  the  particulars  are 
not  true  ;  as  if  a  man  conveys  his  house 
in  D.,  which  was  R.  Cotton's,  when  it 
was  Thomas  Cotton's."  Com.  Dig. 
Fait,  (E  4).  Where  one  devised  all  his 
'■freehold  houses  in  Aldersgate  Street," 
he  having  only  leasehold  houses  there, 
the  leasehold  were  held  to  pass.  Day 
V.  Trigg,  1  P.  Wms.  286.  See  also 
Doe  V.  Cranstoun,  7  RI.  &  "W.  1 ;  Nelson 
V.  Hopkins,  11  Eng.  Law  &  Eq.  66. 
Where  premises  arc  sufficiently  describ- 
ed otherwise,  any  reference  to  the  quan- 
tity of  land  may  be  rejected  as  falsa  de- 
monslratio.  Llewellyn  v.  Earl  of  Jersey, 
11  M.  &  W.  183;  Shcp.  Touch.  248. 
So  where  there  was  a  bequest  to  "John 
and  Benedict,  .sons  of  J.  S.,"  who  had 
two  sons,  James  and  Benedict,  it  was 
held  that  James  might  take.  Dowsctt 
V.  Sweet,  Ambl.  175.  See  Connolly  v. 
Pardon,  1  Paige.  291  ;  Doc  v.  Gallo- 
way, 5  B.  &  Ad.  43  ;  Duke  of  Dorset  v. 
Lord  Ilawarden,  3  Curt.  80 ;  Tudor  v. 
Tcrrcl,  2  Dana,  47  ;  Gynes  v.  Kemsley, 


Frecni.  K.  B.  293  ;  Cbamberlaine  v. 
Turner,  Cro.  Car.  129;  Doe  v.  Parry, 
13  M.  &  W.  356  ;  Goodtitle  v.  Southern, 
1  M.  &  Sel.  299 ;  Beaumont  v.  Fell,  2 
P.  Wms.  140.  —  The  characteristic  of 
cases  falling  under  the  maxim  falsa 
demonstratio  non  nocet,  is  that  the  descrip- 
tion, so  far  as  it  is  false,  applies  to  no 
subject  at  all,  and  so  far  as  it  is  true,  to 
one  subject  only.  Per  Ahlason,  B.,  in 
Morrell  v.  Frith,  4  Exch.  591,  604;  Wi- 
gram  on  Wills,  sec.  133.  —  The  case  of 
Beaumont  r.  Fell,  2  P.  Wms.  140,  if 
it  can  be  sustained  at  all,  must  be  sus- 
tained as  fiilling  under  the  maxim  falsa 
demonstialio  non  nocet.  Before  stating 
the  case,  it  may  be  well  to  remark,  that 
evidence  may  always  be  given  that  a 
testator  was  accustomed  to  call  particu- 
lar individuals  by  peculiar  names,  other 
than  those  by  which  they  were  com- 
monly known,  and  a  devise  or  bequest 
may  take  effect  in  favor  of  such  person 
who  is  designated  in  the  devise  or  be- 
quest by  a  nickname,  provided  the  ap- 
plication of  the  nickname  is  sufficiently 
certain.  Baylis  v.  Attorney-General,  2 
Atk.  239  ;  per  Lord  Abimjer,  in  Doe  v. 
Hiscocks,  5  M.  &  W.  368 ;  Rishton  v. 
Cobl),  5  Myl.  &  Cr.  145  ;  Lee  v.  Pain, 
4  Hare,  251,  252  ;  Parsons  v.  Parsons, 
1  Ves.  Jr.  266;  per  liolfe;  B.,  in  Clay- 
ton V.  Lord  Nugent,  13'  M.  &  W.  207  ; 
White  V.  Bradshaw,  13  Eng.  Law  &  Eq. 
296  ;  Powell  r.  Biddle,  2  Dall.  70.  In 
Beaumont  r.  Fell,  there  was  a  devise  of 
a  legacy  of  .£500  to  "  Catharine  Earn- 
ley."  No  person  of  that  name  claimed 
the  legacy.  It  ^vas  claimed  by  Ger- 
trude Yardley.  It  appeared  that  the 
testator's  voice  when  he  gave  instruc- 
tions for  writing  his  will  was  very  low, 
and  hardly  intelligible  ;  tliat  the  testa- 
tor usually  called  Gertrude  Yardley 
by  the  name  of  Gathj,  which  the  scri- 
vener might  easily  mistake  for  Ka/i/. 
The  scrivener  not  well  understanding 
who  the  legatee  Mas,  owing  to  the  fee- 
bleness of  the  voice  of  the  testator,  tlie 
testator  referred  him  to  J.  S.  and  wife, 
who  afterwards  declared  that  Gertrude 
Yardley  was  the  person  intended.     So 


CII.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    63 

Where  the  language  of  an  instrument  has  a  settled  legal 
meaning,  its  construction  is  not  open  to  evidence.     Thus  a 


far  as  this  case  sanctions  the  admission 
of  evidence  of  intention,  it  is  now  of  no 
authority.  Sec  infra,  n.  (s).  The  only 
ground,  perhaps,  upon  which  the  case 
can  be  sustained,  is  that  "  Earnlcy " 
might  be  rejected  as  falsa  demonstration 
and  that  "Catharine"  was  a  sufficiently 
certain  designation  of  the  individual 
called  "  Gatty "  by  the  testator.  Per 
Lord  Abimjer,  in  Doe  v.  Hiscocks,  5  M. 
&  W.  371.  The  case  of  Selwood  i'. 
Mildmay,  3  Ves.  306,  has  been  regard- 
ed as  falling  under  the  maxim,  '^ falsa 
deinonstratio."  In  this  case  a  testator 
gave  to  his  wife  the  interest  and  pro- 
ceeds of  £1,250,  "part  of  my  stock  in 
the  4  per  cent,  annuities  of  the  Bank  of 
England,  for  and  during  the  term  of 
her  natural  life,  together  with  all  such 
dividends  as  shall  be  due  upon  the  said 
£1,250  at  the  time  of  my  decease."  At 
the  time  he  made  his  will  he  had  no 
stock  in  the  4  per  cent,  annuities,  but  he 
had  had  some,  which  he  had  sold  out, 
and  had  invested  in  Long  Annuities. 
The  Master  of  the  Rolls,  Sir  R.  P.  Ar- 
den,  said: — "It  is  clear  the  testator 
meant  to  give  a  legacy,  but  mistook  the 
fund.  He  acted  upon  the  idea  that  he 
had  such  stock.  The  distinction  is 
this ;  if  he  had  had  the  stock  at  the 
time,  it  would  have  been  considered 
specific,  and  that  he  meant  that  identi- 
cal stock  ;  and  any  act  of  his  destroying 
that  subject  would  be  a  proof  of  animus 
rcvocandi;  but  if  it  is  a  denomination, 
not  the  identical  corpus,  in  that  case,  if 
the  thing  itself  cannot  be  found,  and 
there  is  a  mistake  as  to  the  subject  out 
of  which  it  is  to  arise,  that  will  be  rec- 
tified." According  to  the  view  taken 
of  this  case  by  Tindal,  C.  J.,  in  Miller 
V.  Travers,  8  Ring.  244,  the  parol  evi- 
dence as  to  the  condition  of  the  testa- 
tor's property  was  received,  for  the  pur- 
pose of  showing  that  the  testator,  when 
he  used  the  erroneous  description  of  4 
per  cent,  stock,  meant  to  bequeathe  the 
long  annuities,  which  he  had  purchased 
with  the  produce  of  the  4  per  cent, 
stock ;  and  the  result  of  the  cause  was 
to  sulistitute  another  specific  subject,  in 
the  place  of  a  specific  legacy  which  the 
will  purported  to  bequeathe  ;  —  to  sub- 
stitute the  long  annuities,  which  the  tes- 
tator had  and  did  not  purport  to  give, 


for  the  4  per  cent,  bank  annuities, 
which  he  had  not  and  did  purport  to 
give.  But  it  would  seem  difficult  to 
support  the  decree  on  this  ground.  The 
true  view  of  the  case  seems  to  be  that 
taken  by  Lord  Langdale,  in  Lindgren  v. 
Lindgren,  9  Beav.  358,  namely,  that  the 
parol  evidence  as  to  the  condition  of  the 
testator's  property  showed  that  a  gene- 
ral and  not  a  specific  legacy  was  intend- 
ed. After  stating,  in  the  language  of 
the  decree,  that  the  evidence  was  ad- 
mitted "to  prove,  not  that  there  was  a 
mistake,  for  that  was  clear,  but  to  show 
how  it  arose,"  his  lordship  continued  : 
—  "It  is  very  necessary  to  observe,  that 
in  the  case  of  Selwood  v.  Mildmay,  the 
evidence  was  received  only  for  the  pur- 
pose stated  by  the  Master  of  the  Rolls 
in  his  judgment,  and  not,  as  it  has  been 
erroneously  supposed,  for  the  purpose  of 
showing  that  the  testator,  when  he  used 
the  erroneous  description  of  4  per  cent, 
stock,  meant  to  bequeathe  the  long  annu- 
ities, which  he  had  purchased  with  the 
produce  of  the  4  per  cent,  stock,  and  that 
the  result  of  the  cause  was,  not  to  substi- 
tute anotlier  specific  subject  in  the  place 
of  a  specific  legacy  which  the  will  pur- 
ported to  bequeathe ;  —  not  to  substitute 
the  long  annuities,  which  the  testator  had 
and  did  not  purport  to  give,  for  the  4 
per  cent,  bank  annuities,  which  he  had 
not  and  did  purport  to  give.  The  ab- 
sence of  the  fund  purported  to  be  given 
showing  that  a  specific  legacy  was  not 
intended,  other  evidence  was  admitted 
to  show  how  the  mistake  arose;  and 
this  lieing  clearly  shown,  it  was  held 
that  the  legatees  were  entitled  to  pay- 
ment out  of  the  general  personal  estate." 
And  see  to  the  same  effect,  Sawrcy  v. 
Rumney,  15  Eng.  Law  &  Eq.  4.  In 
Wrotesley  y.  Adams,  Plowd.  191,  it  is 
laid  down  that  "  there  is  a  diversity 
where  a  certainty  is  added  to  a  thing 
that  is  uncertain,  and  where  to  a  thing 
certain.  For  if  I  release  all  my  right 
in  all  my  lands  in  Dale,  which  I  have 
by  descent  on  the  part  of  my  father,  and 
I  have  lands  in  Dale  by  descent  on  the 
part  of  my  mother,  but  no  lands  by  de- 
scent on  the  part  of  ray  father,  there  the 
release  is  void,  and  so  the  words  of  cer- 
tainty, viz.,  which  I  have  by  descent  on 
the  part  of  my  father,  being  added  to 


64 


THE   LAW   OF    CONTRACTS. 


[part  II. 


promise  to   pay  money,  no  time  being  expressed,  means  a 


the  general  words  which  were  uncertain, 
are  of  cft'cct.  But  if  the  release  had 
been  of  Whiteacrc  in  Dale,  which  I 
have  liy  descent  on  the  j)art  of  my  fa- 
ther, and  I  had  it  not  by  descent  on 
the  part  of  my  father,  but  otherwise, 
yet  the  release  is  good,  for  the  thing 
was  certainly  expressed  by  the  first 
words,  in  which  case  the  addition  of 
another  certainty  is  not  necessary,  but 
superfluous."  In  Doe  v.  Parkin,  5 
Taunt.  321,  there  was  a  devise  of  "  all 
my  messuages,  &c.  in  T.,  and  now  in 
ray  own  occupation."  The  testator  had 
two  messuages  in  T.,  of  which  he  occu- 
pied only  one.  IMd,  that  only  that  one 
passed  by  the  devise.  In  this  case 
there  was  certainty  added  to  what  was 
uncertain.  See  per  Parke,  J.,  in  Doe 
V.  Galloway,  5  B.  &  Ad.  51.  Words  of 
certainty,  liowever,  as  they  arc  called  in 
Plowden,  following  general  or  uncertam 
words,  will  not  be  construed  as  restric- 
tive where  the  effect  of  doing  so  would 
be  to  render  the  general  or  uncertain 
words  wholly  inoperative,  and  whei'e 
the  certain  words  may  be  rejected  as 
falsa  demonstralio.  A  testator  devised 
to  J.  S.  "  all  those  my  three  messuages, 
with  the  gardens,  close  of  land,  and  all 
other  my  >vrt/  estate,  whatsoever,  situate 
at  Little  Heath,  in  the  parish  of  F.,  now 
in  the  occupation  of  myself,  and  A.  and 
B."  At  the  date  of  the  will,  and  at  the 
death  of  the  testator,  he  was  possess- 
ed of  three  messuages,  with  gardens, 
and  a  close  of  land,  at  Little  Heath, 
which  were  in  the  occupation  of  him- 
self, and  A.  and  B.  lie  had  also  the 
reversion  in  a  house  and  garden,  situate 
at  Little  Heath,  which  was  in  the  occu- 
pation of  C,  who  was  entitled  to  it  for 
life.  He  had  no  other  property  in  the 
parish  of  F.  Held,  that  the  house  and 
garden  in  the  occupation  of  C.  passed 
under  the  general  devise  to  J.  S.  Doe 
V.  Carpenter,  1  Eng.  Law  &  Eq.  307. 
Sec  also  Nightingall  i'.  Smith.  1  Exch. 
879.  In  Morrell  v.  Fisher,  4  Exch. 
591,  there  was  a  devise  to  the  following 
effect;  —  "  ail  my  leasehold  farm-house, 
homestead,  lands,  and  tenements  at 
Headington,  containing  about  170  acres, 
held  under  Maj^dalen  College,  Oxford, 
and  now  in  the  occupation  of  B.  as  te- 
nant to  me."  B.  occupied  a  farm  at 
Headington,  which  was  leased  to  tiie 
testator  by  Magdalen  College,  and  there 
were  two  parcels  of  land  also  held  by 


the  testator  under  Magdalen  College, 
and  situated  at  Headington.  but  not  in 
the  occupation  of  B.  Held,  that  the 
description  of  the  lands  being  in  the 
possession  of  B.  could  not  be  rejected 
as  falsa  dcmonstratio,  and  consequently 
that  the  two  parcels  did  not  ])ass  under 
the  devise.  In  this  case,  Alderson,  B., 
in  delivering  the  judgment  of  the  court, 
said:  —  "  The  question  is  not  what  the 
testator  intended  to  have  done,  but  what 
the  words  of  the' clause  mean,  after  ap- 
plying to  it  the  established  rules  of  con- 
struction. One  of  these  rules  is,  '  Falsa 
dcmonstratio  non  nocet ; '  another  is,  '  Non 
accipi  debent  verba  in  demonstratio^iem 
falsam,  quae  competunt  in  limitalionem  ve- 
ram^  The  first  rule  means  that  if  there 
be  an  adequate  and  sufficient  descrip- 
tion, with  convenient  certainty  of  what 
was  meant  to  pass,  a  subsequent  erro- 
neous addition  will  not  vitiate  it.  The 
characteristic  of  cases  within  the  rule 
is  that  the  description,  so  far  as  it 
is  false,  applies  to  no  subject  at  all ; 
and  so  far  as  it  is  true  applies  to 
one  only.  The  other  rule  means,  that 
if  it  stand  doubtful  upon  the  words  whe- 
ther they  import  a  false  reference  or 
demonstration,  or  whether  they  be  words 
of  restraint  that  limit  the  generality  of 
the  former  words,  the  law  will  never  in- 
tend error  or  falsehood.  If,  therefore, 
there  is  some  land  wherein  all  the 
demonstrations  are  true,  and  some 
wherein  part  are  true  and  part  false, 
they  shall  be  intended  words  of  true 
limitation  to  pass  only  those  lands 
wherein  the  circumstances  arc  true. 
Whether  these  maxims,  or  ratiier  the 
first,  has  been  correctly  acted  upon  in 
some  of  the  decided  cases,  in  wliich  the 
courts  have  professed,  or  intended  so  to 
do,  need  not  now  be  in(iuircd  into. 
They  certainly  are  acknowledged  rules 
of  construction.  Is  there  then,  in  the 
present  case,  an  adequate  and  sullicient 
description  of  the  subject  of  the  devise, 
so  as  to  enable  us  to  treat  the  descrip- 
tion of  tlie  land  being  in  the  possession 
of  Burrows  as  a  false  demonstration, 
and  reject  it  according  to  the  first  rule  ? 
Now  if  wc  read  tlie  language  of  the  de- 
vise in  its  ordinary  and  obvious  sense, 
it  is  a  gift  first,  of  'all  his  leasehold 
farm-house,  homestead,  lands,  and  tene- 
ments at  Headington,  held  under  ]Mag- 
dalen  College,  and  occupied  Ijy  Bur- 
rows.' There  is  no  doubt  that  the  farm- 


CH.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         65 

promise  to  pay  it  on  demand,  and  evidence  that  a  payment 
at  a  future  day  was  intended  is  not  admissible,  (w) 

There  are  reasons,  although  perhaps  no  direct  authority, 
for  applying  to  the  construction  of  contracts  a  distinction 
which  is  taken  in  respect  of  wills.  If  the  presumption  is 
against  the  apparent  and  natural  effect  of  an  instrument,  it 
may  be  rebutted  by  parol  evidence  ;  but  not  so  if  the  legal 
presumption  is  with  the  instrument.  As  if  a  testator  gives 
two  legacies  to  the  same  party,  in  such  a  way  that  the  pre- 
sumption of  law  is  that  they  are  but  one  legacy,  evidence  is 
receivable  to  show  that  the  testator  said  what  he  meant,  and 
that  a  double  gift  was  intended.  But  if  they  are  so  given 
that  the  law  holds  that  what  is  twice  given  was  meant  to  be 
twice  given,  evidence  is  not  receivable  to  show  that  but  a 
single  gift  was  intended,  {x) 

Where  the  agreement  between  the  parties  is  one  and  en- 
tire, and  only  a  part  of  this  is  reduced  to  writing,  it  would 
seem  that  the  residue  may  be  proved  by  extrinsic  evidence.  (i/) 


house  passed,  for  it  was  a  '  leasehold, 
and  in  the  occupation  of  Burrows ; '  and 
if  there  was  one  acre,  and  one  only,  of 
that  character,  and  that  was  not  in  the 
possession  of  Burrows,  that  would  have 
passed,  and  the  description  would  have 
been  rejected  as  inapplicable  to  any 
such.  The  will  then  professes  to  give 
all  the  testator's  lands  and  tenements  at 
Headington,  leasehold  under  the  col- 
lege, containing  about  170  acres,  in  the 
possession  of  Burrows.  The  descrip- 
tion by  acreage  defines  nothing,  for  it  is 
inapplicable  to  any  subject,  [whether 
the  two  parcels  were  added  or  not,  the 
amount  would  have  been  very  different 
from  170  acres,]  and  therefore  that  may 
be  rejected,  and  then  there  is  nothing  to 
define  any  lands  in  particular.  The 
second  maxim  then  applies,  and  all  the 
demonstrations  here  being  true  as  to 
the  rest  of  the  land,  exclusive  of  these 
two  parcels,  and  part  only  being  true 
as  to  these  parcels,  they  do  not  pass." 
See  also  Doe  v.  Bower,  3  B.  &  Ad.  4.'J3 ; 
Bae.  Max.  Reg.  13  ;  Doe  v.  Hubbard, 
15  Q.  B.  227  ;  Newton  v.  Lucas,  6  Sim. 
54. 

{w)  Warren  v.  Wheeler,  8  Mete.  97  ; 
Atwood  V.  Cobb,  16  Pick.  227  ;  Ryan  v. 
Hall,  13  Mete.  520 ;  Thomson  v.  Ketch- 

6  * 


am,  8  Johns.  189.  But  a  promise  to  do 
something  other  than  to  pay  money,  no 
time  being  expressed,  means  a  promise 
to  do  it  within  a  reasonable  time.  War- 
ren V.  Wheeler,  8  Met.  97.  And  in 
such  a  case,  it  seems  that  a  contempo- 
raneous verbal  agreement  that  the  mat- 
ter stipulated  for  in  a  written  agreement 
should  be  done  at  a  particular  time, 
would  be  admissible  as  bearing  upon 
the  question  of  reasonable  time.  Per 
S/iaw,  C.  J.,  in  Atwood  v.  Cobb,  16 
Pick.  231.  And  see  Barringer  r.  Sneed, 
3  Stew.  201  ;  Simpson  v.  Henderson, 
M.  &  Malk.  300. 

(x)  Hall  V.  Hill,  1  Connor  &  Lawson, 
120,  1  Drury  &  Warren,  94.  See  also 
Spencc  on  the  Equitable  Jurisdiction  of 
the  Court  of  Chancery,  vol.  1,  p,  565,  et 
seq.,  where  this  point  is  fully  examined, 
and  the  authorities  cited. 

(y)  In  Jeftery  v.  Walton,  1  Stark. 
267,  in  an  action  for  not  taking  proper 
care  of  a  horse  hired  by  the  defendant 
of  the  plaintiff,  the  following  memoran- 
dum, made  at  the  time  of  hiring,  was 
offered  in  evidence:  —  "Six  weeks  at 
two  guineas  —  Wm.  Walton,  jun'r." 
Lord  Ellenhorough  regarded  the  memo- 
randum as  incomplete,  but  conclusive 
as  far  as  it  went.    "  The  written  agree . 


66 


THE   LAW   OF    CONTRACTS. 


[part  II. 


And  if  there  are  cotemporaneous  writings  between  the 
same  parties,  so  far  in  relation  to  the  same  subject-matter 
that  they  may  be  deemed  part  and  parcel  of  the  contract, 
although  not  referred  to  in  it,  they  may  be  read  in  connec- 
tion with  it ;  (c)  but  not  so  as  to  affect  a  third  party  who 
relied  upon  the  contract,  and  knew  nothing  of  these  other 


writings. 


Recitals  in  an  instrument  may  be  qualified  or  contradicted 
by  extrinsic  evidence,  if  the  law  of  estoppel  does  not  prevent. 
So  the  date  of  an  instrument,  (a)  or  the  amount  of  the  con- 
sideration paid,  (b)  may  be  varied  by  testimony.  And  an 
instrument  may  be  shown  to  be  void  and  without  legal  ex- 
istence or  efficacy,  as  for  want  of  consideration,  (c)  or  for 
fraud,  (d)  or  duress,  or  any  incapacity  of  the  parties,  (e)  or 
any  illegality  in  the  agreement.  (/)     In  the  same  way,  ex- 


ment,"  said  he,  "  merely  regulates  the 
time  of  hiring  and  the  rate  of  payment, 
and  I  shall  not  allow  any  evidence  to 
be  given  by  the  plaintiff  in  contradic- 
tion of  these  terms,  but  I  am  of  opinion 
that  it  is  competent  to  the  plaintiff  to 
give  in  evidence  supplctory  matter  as 
a  part  of  the  agreement."  See  Knapp 
V.  Harden,  G  C  &  P.  745  ;  Deshon  v. 
Merchants  Ins.  Co.  11  Mete.  199;  Ed- 
wards V.  Goldsmith,  16  Penn.  St.  43. 

(z)  In  Colburn  v.  Dawson,  4  Eng. 
Law  &  Eq.  378,  the  plaintilfs  wrote  to 
defendant :  "  We  are  doing  business 
with  B.,  and  require  a  guaranty  to  the 
amount  of  £200,  and  he  refers  us  to 
you."  Defendant  wrote  in  answer  :  "  I 
have  no  objection  to  become  security 
for  B.,  and  subjoin  a  memorandum  to 
that  effect."  The  memorandum  subjoin- 
ed was  :  "  I  hereby  engage  to  guaranty 
to  Messrs.  Colburn,  iron-masters,  .£200 
for  iron  received  from  th'em  for  B.  as 
annexed."  Held,  that  these  three  docu- 
ments should  be  read  together,  and  that 
the  words,  "  wc  arc  doing  business,"' 
taken  with  the  rest,  showed  that  the 
consideration  for  the  defendant's  under- 
taking was  that  the  plaintiff'  should  con- 
tinue to  supply  B.  with  goods,  and  that 
there  was  therefore  a  good  considera- 
tion. See  also  Hunt  v.  Frost,  4  Gush. 
54;  Ilanford  v.  Rogtrs,  11  Barb.  19; 
Shaw  V.  Leavitt,  3  Sandf  Ch.  163; 
Gammon  v.  Freeman,  31  Maine,  243  ; 
Kenyon  v.  Nichols,  1  llhode  Isl.  411. 


(«)  Breck  v.  Cole,  4  Sandf  79 ; 
Abrams  v.  Pomeroy,  13  111.  133;  Hall 
V.  Cazenove,  4  East,  477.  AVhere,  how- 
ever, the  date  is  referred  to  in  tlie  body 
of  the  instrument,  as  fixing  the  time  of 
payment,  as  where  there  is  a  promise  to 
pay  money  or  do  some  act  '•  in  sixty 
days  from  date,"  the  date  cannot  be  al- 
tered or  varied  by  parol  evidence.  Jo- 
seph V.  Bigelow,  4  Cush.  82. 

(6)  Clifford  v.  Turrell,  1  You.  &  Col. 
Cas.  in  Ch.  138  ;  Rex  v.  Scammonden, 
3  T.  R.  474;  Belden  v.  Seymour,  8 
Conn.  304.  As  to  the  effect  of  the  reci- 
tal in  a  deed  of  conveyance  of  the  pay- 
ment of  the  consideration-money,  as 
evidence  of  such  payment,  the  English 
and  American  authorities  differ,  the 
former  holding  such  recital  to  be  con- 
clusive evidence,  and  the  latter  only  pri- 
ma facie.  See  the  cases  collected  and 
arranged  in  1  Gr.  Ev.  §  26,  n.  (1). 

(c)  Erwin  v.  Saunder.«,  1  Cow.  249  ; 
Foster  v.  Jolly,  1  Cr.  M.  &  Ros.  703. 
The  case  of  Bowers  v.  Hurd,  10  Mass. 
427,  so  far  as  it  contains  a  contrary  doc- 
trine, has  been  overruled.  See  Hill  v. 
Buckminster,  5  Pick.  391  ;  Parish  v. 
Stone,  14  Id.  198. 

((/)  Erwin  v.  Saunders,  1  Cow.  249  ; 
Van  Valkenburgh  v.  Roun,  12  Johns. 
337. 

(e)  Mitchell  v.  Kingman,  5  Pick. 
431. 

(/)  Collins  V.  Blantenn,  2  Wils. 
347. 


CII.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    67 

trinsic  evidence  may  show  a  total  discharge  of  the  obliga- 
tions of  the  contract ;  or  a  new  agreement  substituted  for  the 
former,  which  it  sets  aside ;  (g')  or  that  the  time  when,  (h)  or 
the  place  where,  (i)  certain  things  were  to  be  done,  had  been 
changed  by  the  parties  ;  or  that  a  new  contract,  which  was 
additional  and  supplementary  to  the  original  contract,  had 
been  made  ;  (j)  or  that  damages  had  been  waived,  (k)  or 
that  a  new  consideration,  in  addition  to  the  one  mentioned, 
has  been  given,  if  it  be  not  adverse  to  that  named  in  the 
deed.  {!)  And  if  no  consideration  be  named,  one  may  be 
proved,  (w) 

A  receipt  for  money  is  peculiarly  open  to  evidence.  It  is 
only  primd  facie  evidence  either  that  the  sum  stated  has  been 
paid,  or  that  any  sum  whatever  was  paid,  (n)  It  is  in  fact 
not  regarded  as  a  contract,  and  hardly  as  an  instrument  at 
all,  and  has  but  little  more  force  than  the  oral  admission  of 
the  party  receiving.  But  this  is  true  only  of  a  simple  re- 
ceipt. It  often  happens  that  a  paper  which  contains  a 
receipt,  or  recites  the  receiving  of  money  or  of  goods,  con- 
tains also  terms,  conditions,  and  agreements,  or  assignments. 
Such  an  instrument,  as  to  every  thing  but  the  receipt,  is  no 
more  to  be  affected  by  extrinsic  evidence  than  if  it  did  not 
contain  the  receipt ;  but  as  to  the  receipt  itself,  it  may  be 
varied  or  contradicted  by  extrinsic  testimony,  in  the  same 
manner  as  if  it  contained  nothing  else,  (o) 

If  a  contract  refer  to   principles  of  science,  or  art,  or  use 

[g)  Munroe  v.  Perkins,  9  Pick.  298  ;  Cole  v.  Taylor,  2  N.  Jer.  59  ;  Fuller  v. 

Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58.  Crittenden,   9    Conn.   401  ;  Straton   v. 

{It)  Keating  v.  Price,  1   Johns.  Cas.  Rastall,  2  T.  R.  3G6. 
22 ;    Dearborn   v.   Cross,    7    Cow.   48  ;         (o)  Where   in  a  receipt  money  was 

Neil  V.  Cheves,  1  Bayley,  537 ;  Cuff  v.  acknowledged   to   have   been    received 

Penn,  I  M.  &  S.  21.  "for   safe   keeping,"   it   was   held   that 

(i)  Robinson  u.  Batchelder,  4  N.  II.  40.  no   evidence   was   admissible    to    show 

( ;■)  Jeffery  v.  Walton,  1  Stark.  267.  that  the  money  was  not  deposited  for 

(k)  Fleming  v.  Gilbert,  3  Johns.  528.  safe  keeping,  but  was  in  discharge  of  a 

(/)  Clifford  V.  Turrcll,  1  Y.  &  Coll.  debt.     Tisloc  v.  Gracter,  1  Blackf.  353. 

Cas.  in  Ch.  138;  Bedell's  case,  7  Rep.  See  also  Egleston  i'.  Knickerbacker,  6 

40  a;  Shaw  v.  Leavitt,  3   Sandf.    Ch.  Barb.  458;  Smith  v.  Brown,  3  Hawks, 

163,    173;   Villers   v.   Beamont,   Dyer,  580;  May  v.   Babcock,   4   Ohio,   346 

146  a;  Doe  d.  Milburn  v.  Salkeld,  Wil-  Stone  w.  Vance,  6  Ham.  (Ohio)  246 

les,  677.  Wood  v.  Perry,  Wright,   (Ohio)  240 

(m)  Pott  V.  Todhunter,  2  Coll.  76.  Graves  v.  Ilarwood,  9  Barb.  477  ;  Way 

(«)  Button  V.   Tilden,  13  Penn.  St.  land  y.  Mosely,  5  Ala.  430;  O'Brien  r 

46  ;    Bell   v.   Bell,   12  Penn.    St.  235  ;  Gilchrist,  34  Maine,  544. 
Kirkpatrick  v.  Smith,  10  Humph.  188; 


68 


THE   LAW    OF   CONTRACTS. 


[part  II. 


the  technical  phraseology  of  some  profession  or  occupation, 
or  common  words  in  a  technical  sense,  or  the  words  of  a 
foreign  language,  their  exact  meaning  may  be  shown,  as  we 
have  already  remarked,  by  the  testimony  of  "  experts,"  who 
are  persons  possessing  the  peculiar  knowledge  and  skill  re- 
quisite for  the  interpretation  of  the  contract,  (p)  It  may  be 
added  that  the  testimony  of  the  experts  is  so  far  a  matter  for 
the  jury,  that  if  it  be  contradictory  and  conflicting,  or  uncer- 
tain, it  is  to  be  weighed  by  them.  But  the  legal  effect  of  the 
words  or  phrases,  when  their  meaning  is  ascertained  by  ex- 
perts, belongs  to  the  construction  of  the  contract,  and  is  for 
the  court,  (q) 

Questions  depending  upon  the  construction  or  interpreta- 
tion of  a  contract  sometimes  arise  between  third  parties,  who 
had  no  privity  or  participation  in  the  original  contract,  and 
nothing  to  do  with  the  language  used  in  it.  In  such  cases, 
much  of  the  reason  which  prohibits  the  introduction  of  ex- 


(/))  Goblet  V.  Bcechey,  3  Sim.  24  ; 
Wigram  on  Wills,  Appendix,  No.  1  : 
Masters  v.  Masters,  1  P.  Wms.  425  ; 
Norman  v.  Morrell,  4  Ves.  769  ;  Shore 
f.  Wilson,  9  CI.  &  Fin.  511:  Caharga 
V.  Leegcr,  17  Tcnn.  St.  514.  The  court 
may  always  inform  itself  by  means 
of  books  and  treatises  as  to  the  mean- 
ing of  the  terms  used  in  an  instrument, 
especially  where  that  instrument  is  an- 
cient, or  uses  scientific  terms.  Per  Tin- 
dal,  C.  J.,  in  Shore  v.  Wilson,  9  CI.  & 
Fin.  568  ;  per  Eyre,  C.  B.,  in  Attorney- 
General  V.  Plate-Glass  Co.  1  Anst.  39, 
44. 

(7)  In  Armstrong  v.  Burrows,  6 
Watts,  266,  where  the  only  matter  in 
dispute  was  as  to  the  date  of  a  receipt 
given  by  tiic  plaintiff,  the  date  being 
illegible,  the  court  upon  the  trial  as- 
sumed an  exclusive  right  to  decipher 
the  instrument,  and  to  determine  the 
date,  upon  tlic  evidence  given.  Upon 
error,  (Jihson,  C.  J.,  in  reversing  the 
judgment  of  the  court  below,  said :  — 
•'That  the  court  assumed  an  exclusive 
right  to  dccijiher  the  contested  letters  is 
both  true  and  fatal.  It  doubtless  be- 
longs to  it  to  interpret  the  meaning  of 
written  words  ;  but  this  extends  not  to 
the  letters,  for  to  interpret  and  to  deci- 
plier  are  different  things.     A  writing  is 


read  before  it  is  expounded,  and  the  as- 
certainment of  the  words  is  finished  be- 
fore the  business  of  exposition  begins. 
If  the  reading  of  the  judge  were  not 
matter  of  fact,  witnesses  would  not  be 
heard  in  contradiction  of  it ;  and  though 
he  is  supposed  to  have  peculiar  skill  in 
the  meaning  and  construction  of  lan- 
guage, neither  his  business  nor  learning 
is  supposed  to  give  him  a  superior 
knowledge  of  figures  or  letters.  His 
right  to  interpret  a  paper  written  in 
Coptic  characters  would  be  the  same 
that  it  is  to  interpret  an  English  writ- 
ing ;  yet  the  words  would  be  approach- 
ed only  through  a  translation.  The 
jury  were,  therefore,  not  only  legally 
competent  to  read  the  disputed  word, 
but  bound  to  ascertain  what  it  was 
meant  to  represent."  See  Cabarga  v. 
Lceger,  17  Penn.  St.  514;  Jackson 
V.  llansom,  18  Johns.  107;  Sheldon 
?'.  Benham,  4  Hill,  129.  In  Remon  v. 
Ilayward,  2  Ad.  &  El.  666,  it  is  said 
that  a  fjuestion  arising  at  Nisi  Prius, 
before  Lord  Demnan,  from  the  obscurity 
of  the  handwriting,  what  the  words  of  a 
written  instrument  produced  in  evidence 
really  were,  his  lordship  decided  the 
question  himself,  and  refused  to  have  it 
put  to  the  jury. 


en.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    69 

trinsic  evidence  fails,  and  with  it  tiie  prohibition  fails.  It 
would  be  obviously  unjust  to  hold  these  parties  responsi- 
ble for  words  which  neither  of  them  selected  or  adopted,  or 
had  any  power  to  exclude  or  to  qualify.  They  may  there- 
fore show  by  extrinsic  evidence  what  the  agreement  between 
the  original  parties,  which  purports  to  be  expressed  by  the 
written  contract,  really  was,  so  far  as  this  is  necessary  to 
establish  their  actual  rights,  and  to  do  full  justice  between 
them,  (r) 

The  rule  in  relation  to  extrinsic  evidence  prohibits  the  ad- 
mission of  oral  testimony  "  to  contradict  or  vary  "  the  terms 
of  a  valid  written  contract.  Therefore,  there  is  nothing  in 
this  rule  to  prevent  the  introduction  of  such  testimony  for 
the  purpose  of  explaining-  the  contract.  But  here  a  distinc- 
tion is  taken,  which,  if  it  did  not  originate  with  Lord  Bacon, 
was  first  clearly  stated  by  him  ;  it  is  the  distinction  between 
a  patent  ambiguity  and  a  latent  ambiguity,  {s) 


(r)  Rex  V.  Scammonden,  3  T.  R. 
474;  The  King  v.  Laindon,  8  T.  R. 
379;  Tavlorw.  Baldwin,  10  Barb.  582; 
Krider  v.  Lafferty,  1  AVhart.  303.  The 
parties  to  an  instrument  may  show  the 
true  character  of  the  transaction  be- 
tween them  in  controversies  with  stran- 
gers. Strader  v.  Lambeth,  7  B.  Men. 
589 ;  Reynolds  v.  Magness,  2  Iredell, 
26  ;  Venable  v.  Thompson,  11  Ala. 
147. 

(s)  The  rule  as  to  latent  and  patent 
ambiguities  has  been  regarded  as  furnish- 
ing a  decisive  test  by  which  to  deter- 
mine in  all  cases  whether  extrinsic  evi- 
dence is  admissible  to  aid  in  the  inter- 
pretation and  construction  of  a  written 
instrument.  It  has  been  looked  upon 
as  covering  the  whole  ground  of  the  ad- 
mission of  extrinsic  evidence,  and  the 
confusion  M'hich  has  existed  upon  this 
subject  is  attributable  in  a  great  degree 
to  the  loose  and  uncertain  meanings  at- 
tached to  the  terms  latent  and  patent 
ambiguities.  The  term  ambiguity  itself, 
which  properly  means  the  having  two 
meanings,  is  misapplied  when  used  to 
comprehend  all  doubts  and  uncertain- 
ties in  respect  to  the  meaning  of  written 
instruments.  As  the  term  patent  has 
been  understood,  it  is  not  true,  that  a 
patent  ambiguity  is  unexplainable  by 
extrinsic  evidence.    Where  words  are, 


in  the  truest  sense  of  the  term,  ambigu- 
ous, that  is,  have  double  meanings,  not 
simply  double  applications,  as  mere 
names,  the  uncertainty  is  inherent  in 
the  word,  and  is  of  course  necessarily 
patent.  Thus  the  word  "  freight,"  as  it 
was  remarked  by  Mr.  Justice  Story,  in 
Peisch  i\  Dickson,  1  Mason,  10,  is  sus- 
ceptible of  two  meanings,  and  it  might 
be  doubtful  on  the  foce  of  an  instru- 
ment whether  it  referred  to  goods  on 
board  a  ship,  or  to  an  interest  in  its 
earnings.  There  can  be  no  doubt  that 
in  such  a  case  extrinsic  evidence  of  the 
circumstances  under  which  the  mstru- 
mentwas  made  would  be  admissible  to 
remove  the  doubt  or  uncertainty.  See 
also,  as  to  the  meaning  of  the  word 
"  port,"  De  Longuemere  v.  N.  Y.  Fire 
Ins.  Co.  10  Johns.  120.  So  although  a 
devise  or  grant  to  "  one  of  the  sons  of 
A.,"  he  having  several  sons,  would  be 
void  for  uncertainty,  (Altham's  case,  8 
Rep.  155  a,)  yet  there  is  no  reason  why 
a  devise  "to  one  of  the  sons  of  A.,"  he 
being  dead,  and  having  only  one  son, 
would  not  be  good.  Wigram  on  Wills, 
sec.  79.  Here  a.  patent  ambiguity  would 
be  removed  by  evidence  of  extrinsic 
facts.     In  Price   v.  Page,  4   Ves.  679, 

there  was  a  legacy  to Price,  the 

son  of Price.     The  plaintiff  was 

the  only  claimant.    He  was  a  son  of  a 


70 


THE   LAW   OF   CONTRACTS. 


[part  II, 


"  There  be  two  sorts  of  ambiguities  of  words ;  the  one  is 
amhiguitas  patens,  and  the  other  lalens.    Patens  is  that  which 


niece  of  tlic  testator,  the  only  relation 
of  the  name  of  Price,  and  lived  upon 
terms  of  intimacy  with  the  testator. 
He  was  held  entitled. —  The  rule  that  no 
evidence  is  admissible  to  remove  a  pa- 
tent ambiguity  would  be  strictly  correct, 
if  by  patent  amhiguily  we  mean  that  state 
of  uncertainty  whicli  exists  where  it  is 
perfectly  clear  from  the  face  of  the  in- 
strument to  be  construed,  either  that  no 
certain  subject  has  been  selected,  upon 
which  the  instrument  can  operate  or 
take  effect,  or  that  no  certain  penson  or 
persons  have  been  selected  to  ije  bene- 
fited or  affected  by  the  instrument,  or 
that  no  certain  purpose  has  been  indi- 
cated in  respect  to  the  subjects  or  ob- 
jects. Thus,  a  devise  to  "  twenty  of 
the  poorest  of  the  testator's  kindred,"  is 
void  for  uncei'tainty.  Webb's  case,  1 
Rol.  Abr.  609.  So  a  bequest  of  "  some 
of  my  best  linen."  Peck  v.  Halsey,  2 
P.  Wms.  387.  So  also  a  devise  to  this 
effect :  "  I  request  a  handsome  gratuity 
to  be  given  to  each  of  my  executors." 
Jubber  v.  Jubber,  9  Sim'  50.3.  So  a 
devise  to  the  "  best  men  of  the  White 
Towers."  Year  Book,  49  Ed.  3,  cited 
in  Winter  v.  Pcrratt,  9  CI.  &  Fin.  088. 
So  a  bequest  of  a  legacy  to  be  distribu- 
ted "among  tiie  real  distressed  private 
poor  of  Talbot  county,"  there  being  no 
discretion  given  to  the  executors. 
Trippe  v.  Frazier,  4  H.  &  Johns.  446. 
The  same  would  be  true  of  a  bequest, 
•' to  be  applied  towards  feeding,  cloth- 
ing, &e.,  the  poor  children  of  C.  countj', 
which  attend  the  poor  or  charity  school 
established  at  II.,  in  said  county.  Dash- 
iell  V.  Attorney-General,  0  II.  &  Johns. 
1.  See  also  Dashiell  r.  Attornev  Ge- 
neral, ft  II.  &  Johns.  392  ;  Beal  v.'Wy- 
man,  Styles,  240  ;  Jackson  v.  Craig,  3 
Eng.  Law  &  Eq.  173  ;  Baker  v.  Newton, 
2  Beav.  112;  Fowler  v.  Garlikc,  1  Has. 
&  Myl.  232;  Attorney-General  v.  Sib- 
thorp,  2  Kus.  &  Myl.  107  ;  Mason  v. 
Robinson,  2  Sim.  &"Stu.  29.5;  Winter 
V.  Perratt,  9  CI.  &  Fin.  606;  Doe  v. 
Carew,  2  Q.  B.  317  ;  Weatherhead's 
lessee  i'.  Baskerville,  1 1  How.  329.  In 
very  few  cases,  however,  will  it  be  per- 
fectly clear  upon  the  face  of  the  instru- 
ment that  the  intent  is  so  uncertain,  that 
no  evidence  of  extrinsic  facts  can  make 
it  certain. — The  term  "latent  ambigu- 
ity "  is  used  very  loosely  to  mean  any 


doubt  or  uncertainty  raised  by  extrinsic 
evidence,  and  very  frequently  there  is  a 
fiiilure    to    distinguish    between    cases 
where  a  description  is  equally  applica- 
ble to  cither  one  of  two  or  more  per- 
sons, or  of  two  or  more  things,  and  the 
other  cases  in  which  a  doubt  is  raised 
by  extrinsic  facts,  such  as  cases  of  de- 
fective and  inaccurate  description.    This 
distinction  is  of  great  consequence,  es- 
pecially in  reference  to  the  kind  of  evi- 
dence admissible  to  remove  the  doubt 
or  uncertainty,  for  it  is  only  in  the  case 
of  the  double  application  of  words  of 
description  that  evidence  of  intention  di- 
rect is  admissible  to  remove  the  uncer- 
tainty.    It  may  be  shown  which  of  two 
or  more  persons  or  things  was  intended 
by  a  description  equally  applicable  to 
all.   Altham's  case,  8  Kep.  1.55  a;  Jones 
V.  Newman,  1  Wm.  Bl.  60 ;  Doe  v.  Mor- 
gan, 1  Cr.  &  M.  235  ;  Doe  v.  Allen,  12 
Ad.  &  El.  451  ;  Osborn  v.  Wise,  7  C.  & 
P.  761  ;  Blundell  r.  Gladstone,  12  Eng. 
Law  &  I'>q.  52  ;  Careless  v.  Careless,  19 
Ves.    601  ;    Carruthers    v.    Shcddon,    6 
Taunt.   14;  Waterman  v.  Johnson,  13 
Pick.  201.     But  see  as  to  latent  ambi- 
guitv,  in  case  of  sheriffs'  sales,  Mason 
r.    White,   11    Barb.    174.     In   Doe  d. 
Gord  )•.  Needs,  2  M.  &  W.  1 29,  the  law 
with  respect  to  the  admission  of  extrin- 
sic evidence,  in  the  case  of  latent  ambi- 
guities, is  laid  down  with  great  clear- 
ness by  Parke,  B.     The  testator  in  that 
case  devised  a  house  to  George  Gord, 
the  son   of  George    Gord ;   another  to 
George  Gord  the  son  of  Gord.     He  also 
bequeathed  a  legacy  to  George  Gord, 
the  son  of  John  Gord.     The  (juestion 
was,   whether  evidence  was  admissible 
to  show  that  the  testator  intended  that 
the  house  devised  to  "  George  Gord,  the 
son  of  Gord,"  should  go  to  George,  the 
son  of  George  Gord.     Parke,  B.,  said  : 
—  "If,  upon  the  face  of  the  devise,  it 
had  been  uncertain  whether  the  devisor 
liad  selected  a  particular  object  of  his 
bounty,  no  evidence  would  have  been 
admissil)lc  to  prove  that  he  intended  a 
gift  to  a  certain  individual ;  sucii  would 
have  been  a  case  of  aniblguitas  jiatens, 
within    the   meaning  of  Lord    Bacon's 
rule,  which  amiiiguity  could  not  be  hol- 
pcn  by  averment ;  for  to  allow  such  evi- 
dence would    be,    with    respect    to  that 
subject,  to  cause  a  parol  will  to  operate 


CH.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    71 

appears  to  be  ambiguous  upon  the  deed  or  instrument;  la- 
tens  is  that  which  secmeth  certain,  and  without  ambiguity, 


as  a  written  one,  or,  adopting  the  lan- 
guage of  Lord  Bacon,  '  to  make  that 
pass  without  writing  which  the  law  ap- 
pointcth  shall  not  pass  but  by  writing.' 
But  here  on  the  face  of  the  devise  no 
such  doubt  arises.  There  is  no  blank 
before  the  name  of  Gord  the  father, 
which  might  have  occasioned  a  doubt 
whether  the  devisor  had  finally  fixed  on 
any  certain  person  in  his  mind.  The 
devisor  has  clearly  selected  a  particular 
individual  as  the  devisee.  Let  us  then 
consider  what  would  have  been  the  case 
if  there  had  been  no  mention  in  the 
will  of  any  other  George  Gord,  the  son 
of  a  Gord  ;  on  that  supposition  there  is 
no  doubt,  upon  the  authorities,  but  that 
evidence  of  the  testator's  intention,  as 
proved  by  his  declarations,  would  have 
been  admissible.  Upon  the  proof  of 
extrinsic  facts,  which  is  always  allowed, 
in  order  to  enable  the  court  to  place  it- 
self in  the  situation  of  the  devisor,  and 
to  construe  his  will,  it  would  have  ap- 
peared that  there  were  at  the  date  of 
the  will  two  persons,  to  each  of  whom 
the  desci'iption  would  be  equally  appli- 
cable. This  clearly  resembles  the  case 
put  by  Lord  Bacon  of  a  latent  ambigu- 
ity, as  where  one  grants  his  manor  of 
S.  to  J.  F.  and  his  heirs,  and  the  truth 
is  that  he  has  the  manors  both  of  North 
S.  and  South  S. ;  in  which  case  Lord 
Bacon  says,  '  it  shall  be  holpen  by  aver- 
ment whether  of  them  was  that  which 
the  party  intended  to  pass.'  The  case 
is  also  exactly  like  that  mentioned  by 
Lord  Coke  in  Altham's  case,  8  Rep. 
155  a;  'if  A.  levies  a  fine  to  William, 
his  son,  and  A.  has  two  sons  named 
William,  the  averment  that  it  was  his 
intent  to  levy  the  fine  to  the  younger 
is  good,  and  stands  well  with  the  words 
ofthejine.^  Another  case  is  put  in  Coun- 
den  V.  Clarke,  Hob.  32,  which  is  in 
point ;  '  if  one  devise  to  his  son  John, 
where  he  has  two  sons  of  that  name,' 
and  the  same  rule  was  acted  upon  in  the 
recent  case  of  Doe  v.  Morgan,  1  C.  & 
M.  235.  The  characteristic  of  all  these 
cases  is,  that  the  words  of  the  will  do 
describe  the  object  or  subject  intended  ; 
and  the  evidence  of  the  declarations  of 
the  testator  has  not  the  ettcct  of  vary- 
ing the  instrument  in  any  way  what- 
ever ;  it  only  enables  the  court  to  reject 
one  of  the  subjects  or  objects  to  which 


the  description  in  the  will  applies  ;  and 
to  determine  which  of  the  two  the  tes- 
tator understood  to  be  signified  by  the 
description  which  he  used  in  the  will. 

There   would   have   been 

no  doubt  whatever  of  the  admissibility 
of  evidence  of  the  devisor's  intention,  if 
the  devise  to  '  George,  the  son  of  Gord,' 
had  stood  alone,  and  no  mention  had 
been  made  in  the  will  of  George,  the 
son  of  Jolin  Gord,  and  George,  the  son 
of  George  Gord.  But  does  the  circum- 
stance that  there  are  two  persons  named 
in  the  will,  each  answering  the  de- 
scription of  'George,  the  son  of  Gord,' 
prevent  the  application  of  this  rule  1 
We  are  of  opinion  that  it  does  not.  In 
truth,  the  mention  of  persons  by  those 
descriptions  in  other  parts  of  the  will 
has  no  more  eifect,  for  this  purpose, 
than  proof  by  extrinsic  evidence  of  the 
existence  of  such  persons,  and  that  they 
were  known  to  the  devisor,  would  have 
had  ;  it  shows  that  there  were  two  per- 
sons, to  either  of  whom  the  description 
in  question  would  be  applicable,  and 
tliat  such  two  persons  were  both  known ; 
and  the  present  case  really  amounts  to 
no  more  than  this,  that  the  person  to 
whom  the  imperfect  description  appears 
on  the  parol  evidence  to  apply  is  de- 
scribed in  other  parts  of  the  same  will 
by  a  more  full  and  perfect  description, 
which  excludes  any  other  object  than 
himself."  Evidence  of  intention  may 
be  admitted,  where  there  are  two  per- 
sons of  the  same  name,  father  and  son, 
although  the  son  has  the  addition  of 
jiin'r  to  his  name.  Coit  v.  Starkwea- 
'ther,  8  Conn.  289.  See  Doe  v.  West- 
lake,  4  B.  &  Aid.  57.  If  in  cases  of 
latent  ambiguity  the  intent  of  the  par- 
ties is  not  ascertained,  the  instrument 
is  void  for  uncertainty.  Richardson  v. 
Watson,  4  B.  &  Ad.  787;  Cheyncy's 
case,  5  Rep.  68  b.  Much  will  be  gained 
in  point  of  accuracy,  it  is  conceived,  by 
i-estricting  the  term  latent  ambiguity  to 
the  case  where  words  of  description 
have  a  double  application.  Indeed  it 
is  so  restricted  by  Alderson,  B.,  in  Smith 
V.  JeftVycs,  15  M.  &  W.  562.  If  the 
term  is  so  restricted,  we  then  have  the 
cases  of  latent  ambiguilics  proper,  in 
whicli  alone  evidence  of  intention  direct 
is  admissible.  All  other  uncertainties, 
whether  patent  or  latent,  in  the  ordinary 


72  THE   LAW   OF   CONTRACTS.  [PART  II. 

for  any  thing  that  appeareth  upon  the  deed  or  instrument; 
but  there  is  some  collateral  matter  out  of  the  deed  that  breed- 
eth  the  ambiguity.  Ambiguitas  patens  is  never  holpen  by 
averment,  and  the  reason  is,  because  the  law  will  not  couple 
and  mingle  matter  of  specialty,  which  is  of  the  higher  ac- 
count, with  matter  of  averment,  which  is  of  inferior  account 
in  law  ;  for  that  were  to  make  all  deeds  hollow,  and  subject 
to  averments,  and  so,  in  effect,  that  to  pass  without  deed, 
which  the  law  appointeth  shall  not  pass  but  by  deed.  There- 
fore, if  a  man  give  land  to  J.  D.  et  J.  S.,  et  hcBredibus,  and 
do  not  limit  to  whether  of  their  heirs,  it  shall  not  be  supplied 
by  averment  to  whether  of  them  the  intention  was  the  inhe- 
ritance should  be  limited.  But  if  it  be  ambiguitas  latens, 
then  otherwise  it  is  :  as  if  I  2;rant  mv  manor  of  S.  to  J.  F. 
and  his  heirs,  here  appeareth  no  ambiguity  at  all  ;  but  if  the 
truth  be,  that  I  have  the  manors  both  of  South  S.  and  North 
S.,  this  ambiguity  is  matter  in  fact ;  and,  therefore,  it  shall 
be  holpen  by  averment,  whether  of  them  was  that  the  party 
intended  should  pass."  {t) 

The  rules  of  Lord  Bacon  rest  entirely  upon  the  principle 
that  the  law  will  not  make,  nor  permit  to  be  made,  for  par- 
ties, a  contract  other  than  that  which  they  have  made  for 
themselves.  They  can  have  no  other  basis  than  this  ;  and  so 
far  as  they  carry  this  principle  into  effect  they  are  good  rules, 
and  no  farther.  For  it  is  this  principle  which  underlies 
the  whole  law  of  construction,  and  originates  and  measures 
the  value  of  all  its  rules.  Thus,  if  a  contract  be  intelligible, 
and  evidence  shows  an  uncertainty,  not  in  the  contract,  but 
in  its  subject-matter  or  its  application,  other  evidence  which 
will  remove  this  uncertainty  is  admissible,  (u)  But  if  a  con- 
sense  of  those  terms,  must  be  removed  (»)  "For  the  purpose  of  applying  the 
by  the  same  kind  of  evidence,  namely,  instrument  to  the  facts,  and  determining 
by  placing  the  court  which  is  to  construe  what  passes  by  it,  and  who  take  an  in- 
an  instrument  as  nearly  as  possible  in  tercst  under  it,  every  material  fact  that 
the  situation  of  the  author  of,  or  par-  will  enable  the  court  to  identify  the  i)er- 
ties  to,  such  instrument.  The  rule  of  sou  or  thing  mentioned  in  the  instru- 
patent  and  latent  anil)iguities,  then,  falls  nient,  and  to  place  the  court,  whoso 
to  the  ground,  us  furnishing  a  decisive  i)rovincc  it  is  to  declare  the  meaning  of 
test  by  wliicli  to  determine  in  all  cases  tlie  words  of  the  instrument,  as  near  as 
wheth"cr  evidence  may  be  admitted  to  may  be  in  the  situation  of  the  parties  to 
explain  a  written  instrument.  it,    is   admissible    in    evidence."      Per 

(t)  Bac.  Max.  lleg.  23.  Parke,  B.,  in  Shore  v.  Wilson,  9  CI.  & 


CH.  I.]     CONSTRUCTIOX  AND  INTERPRETATION  OF  CONTRACTS.         73 

tract  is  not  certainly  intelligible  by  itself,  it  may  be  said  that 
evidence  which  makes  it  so  must  make  a  new  contract;  for 
one  that  is  intelligible  cannot  be  the  same  with  one  that  is 
unintelligible ;  and  therefore  the  evidence  is  not  admissible. 
But  this  argument  must  not  be  carried  too  far,  for  it  is  not  al- 
ways applicable  without  much  qualification.  What  indeed  is 
the  meaning  of  uncertainty  ?  If  words  of  a  foreign  language 
are  used,  the  contract  is  uncertain  until  they  are  interpreted  ; 
if  words  which  are  merely  technical,  then  it  is  uncertain  until 
experts  have  given  their  meaning  ;  if  words  which  are  applica- 
ble to  two  or  three  different  things  or  persons,  then  it  is  uncer- 
tain until  the  one  thing  or  person  is  clearly  pointed  out.  Now, 
where  does  the  law  stop  in  this  endeavor  to  remove  uncer- 
tainty ?  We  answer,  not  until  it  is  found  that  the  contract 
must  be  set  aside,  and  another  one  substituted,  before  cer- 
tainty can  be  attained.  In  other  words,  if  the  contract  which 
the  parties  have  made  is  incurably  uncertain,  the  law  will 
not,  or  rather  cannot  enforce  it ;  and  will  not,  on  the  pre- 
tence of  enforcing  it,  set  up  a  different  but  valid  one  in  its 
stead.  It  will  only  declare  such  a  supposed  contract  no  con- 
Fin.  556.  See  Guy  v.  Sharp,  1  Myl.  &  by  which  at  the  time  of  expressing  him- 
K.  589,  602,  per  Loi'd  Brougham;  Doe  self  he  is  surrounded.  If  therefore  when 
V.  Martin,  1  Nev.  &  Man.  524,  per  the  circumstances  under  which  the  testa- 
Parke,  J. ;  Doe  v.  Hiscocks,  5  M.  &  W.  tor  made  his  will  are  known,  the  words 
367,  per  Lord  Abwger ;  Hildebrand  v.  of  the  will  do  sufficiently  express  the  in- 
Fogle,  20  Ohio.  147  ;  Hasbrook  v.  Pad-  tention  ascribed  to  him,  the  strict  limits 
dock,  1  Barb.  635  ;  Simpson  v.  Hender-  of  exposition  cannot  be  transgressed, 
son,  M.  &  Malk.  300 ;  Wood  v.  Lee,  5  because  the  court,  in  aid  of  the  construc- 
Monroe,  50,  59;  Hitchin  v.  Groom,  5  tion  of  the  will,  refers  to  those  extrinsic 
C.  B.  515.  "Where  there  is  a  gift  of  collateral  circumstances  to  which  it  is 
the  testator's  stock,  that  is  ambiguous,  it  certain  the  language  of  the  will  refers, 
has  different  meanings  when  used  by  a  It  may  be  true,  that,  without  such  evi- 
farmer  and  a  merchant.  So  with  a  be-  dence,  the  precise  meaning  of  the  words 
quest  of  jewels;  if  by  a  nobleman,  it  could  not  be  determined;  but  it  is  still 
would  pass  all ;  but  if  by  a  jeweller,  it  the  will  which  expresses  and  ascertains 
would  not  pass  those  that  he  had  in  the  intention  ascribed  to  the  testator, 
his  shop.  Thus  the  same  expression  A  page  of  history  (to  use  a  familiar 
may  vary  ill  meaning  according  to  the  illustration)  may  not  be  intelligible  till 
circumstances  of  the  testator."  Per  some  collateral  extrinsic  circumstances 
Plainer,  M.  R.,  in  Colpoys  v.  Colpoys,  are  known  to  the  i-eader.  No  one,  how- 
Jac  464.  See  also  Kelly  i'.  Powlet,  ever,  would  imagine  that  he  was  acquir- 
Ambl.  605,  610.  The  remarks  of  Sir  ing  a  knowledge  of  the  writer's  meaning 
James  Wigram  upon  this  point,  al-  from  any  other  source  than  the  page  he 
though  made  with  reference  to  wills,  was  reading,  because,  in  order  to  make 
ai)ply  equally  to  all  instruments  to  be  that  page  intelligible,  he  required  to  be 
construed.  "  It  must  always  be  rcmem-  informed  to  what  country  the  writer  bc- 
bercd,"  says  he,  "  that  the  words  of  a  longed,  or  to  be  furnished  with  a  map 
testator,  like  those  of  every  other  per-  of  the  country  about  which  he  was  rcad- 
8on,  tacitly  refer  to  the  circumstances  ing."  Wigram  on  Wills,  sec.  76. 
VOL.  II.  7 


74 


THE   LAW   OF   CONTRACTS. 


{part  IL 


tract  at  all ;  and  the  parties  are  left  to  the  mutual  rights  and 
obligations  which  may  then  exist  between  them.  But  on 
the  other  hand,  the  law  will  not  pronounce  a  contract  incur- 
ably uncertain,  and  therefore  null,  until  it  has  cast  upon  it 
all  the  light  to  be  gathered  either  from  a  collation  of  all  the 
words  used,  or  from  all  contemporaneous  facts  which  extrin- 
sic testimony  establishes,  {v)  If  these  make  the  intention 
and  meaning  of  the  parties  certain,  it  may  still  be  an  inten- 
tion which  the  words  cannot  be  made  to  express  by  any  fair 
rendering.  In  this  case  also  the  contract  is  null,  for  it  is  the 
words  and  not  the  intention  that  must  prevail.  But  if,  when 
the  intention  is  thus  ascertained,  it  is  found  that  the  words 
will  fairly  bear  a  construction  which  makes   them  express 


(v)  Among  the  material  facts  neces- 
sary to  be  known  by  the  court  in  order 
that  it  may  be  placed  as  near  as  may 
be  in  the  position  of  the  parties  to  any 
instrument,  is  the  knowledge  or  ignorance 
of  those  parties  as  to  certain  facts  neces- 
sarily involved  in  the  application  of  the 
instrument  to  the  persons  or  things  de- 
scribed in  it.  Thus,  in  Doe  v.  Beynon, 
12  Ad.  &  El.  431,  there  was  a  devise  to 
Mary  B.,  with  remainder  to  "her  three 
daughters,  Mary,  Elizabeth,  and  .<4nn." 
At  the  date  of  the  will,  Mary  B.  had 
two  legitimate  daughters,  Mary  and 
Ann,  living,  and  one  illegitimate  named 
Elizabeth.  It  was  held,  that  evidence 
was  ^dmissable  to  show  that  Mary  B. 
formerly  had  a  legitimate  daughter 
named  Elizabeth,  who  died  some  years 
before  the  date  of  the  will,  and  that  the 
testator  did  not  know  of  her  death,  or 
of  the  birth  of  the  illegitimate  daughter. 
Sec  also  Powell  v.  Biddle,  2  Dall.  70  ; 
Goodinge  v.  Goodingc,  1  Ves.  231  : 
Careless  v.  Careless,  19  Ves.  601  ;  Scan- 
Ian  V.  Wright,  13  Pick.  .523  ;  Brewster  v. 
TMcCall's  devisees,  15  Conn.  274,  296.— 
So  where  the  question  is  one  purely  of 
intention,  tlie  belief  of  the  author  of  an 
instrument,  as  to  facts  necessarily  in- 
volved in  it,  may  have  an  important 
hearing  upon  its  construction.  A  tes- 
tator devised  his  farm  in  A.,  in  the  pos- 
session of  T.  IL,  to  T.  II.  lie  had  two 
farms  in  A.,  both  of  which  were  in  the 
possession  of  T.  11.,  but  at  different 
rents.  On  a  question  being  raised 
which  of  tliesc  two  farms  the  testator 
intended  to  give  to  T.  R.,  held,  tliat  tlic 


devise  must  be  taken  to  have  been  made 
to  T.  R.  for  his  personal  advantage  and 
not  upon  trust ;  and  if  therefore  it  could 
be  ascertained  that  one  of  the  farms 
was  subject  to  a  trust,  or  that  the  testa- 
tor supposed  it  to  be  so,  it  must  then  be 
inferred  that  such  farm  was  not  the  one 
intended  to  be  devised,  but  that  the 
other  was  the  one  referred  to  by  the 
testator.  Lord  St.  Leonardo  said  :  — 
"  The  only  question  wliich  is  absolute- 
ly necessary  to  be  decided  is  this,  not 
whether  the  testator  really  held  those 
estates,  or  one  of  them,  on  any  valid 
trusts,  but  rather  what  he  considered 
and  understood  to  be  his  interest, 
that  is,  whether  he  supposed  that  he 
held  them,  or  one  of  them,  on  any  trust, 
or  treated,  or  intended  to  treat,  or  to 
have  them  or  one  of  them  treated,  as  if 
so  held  in  trust.  If  lie  supposed  that 
he  held  one  of  them  in  trust,  or  treated 
it  as  if  so  held  and  intended  that  it 
should  be  considered  and  treated  as  so 
held,  and  if  it  does  not  appear  that  he 
held,  or  supposed  that  he  lield,  the 
other  of  them  on  any  trust,  it  seems  to 
mc  that  the  one  which  he  sujiposed  to 
be  held  on  any  trust,  or  treated  as  if  so 
held,  cannot  l)e  regarded  as  intended  to 
be  tlic  sul)ject  of  the  devise  to  Mr.  Ro- 
binson, and  consequently  the  other  es- 
tate may  be  deemed  to  lie  the  one  refer- 
red to  in  that  devise."  Blundell  v. 
Gladstone,  12  Eng.  Law  &  Eq.  52.  See 
also  (^uinccyi!.  Quincey,  11  Jurist,  111  ; 
Conolly  V.  Pardon,  1  Paige,  291  ;  Baker 
V.  Baker,  2  Ves.  167. 


ClI.  I.]     CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.         75 

this  intention,  then  the  words  will  be  so  construed,  and  the 
contract,  in  this  sense  or  with  this  interpretation,  will  be  en- 
forced, as  the  contract  which  the  parties  have  made. 

The  distinction  and  the  rules  of  Lord  Bacon  are  therefore 
less  regarded  of  late  than  they  were  formerly,  [w)  They  are 
intended  to  enable  the  court  to  distinguish  between  cases  of 
curable  and  those  of  incurable  uncertainty;  to  carry  the  aid 
of  evidence  as  far  as  it  can  go  without  making  for  the  parties 
what  they  did  not  make  for  themselves,  and  to  stop  there. 
And  it  is  found  that  it  is  sometimes  of  doubtful  utility  to 
refer  to  these  rules  in  the  endeavor  to  ascertain  the  meaning 
of  a  contract,  rather  than  to  the  simpler  rule,  that  evidence 
may  explain  but  cannot  contradict  written  language.  This 
last  rule  limits  all  explanation  to  cases  of  uncertainty,  be- 
cause where  the  meaning  is  plain  and  unquestionable,  ano- 
ther meaning  is  not  that  which  the  parties  have  agreed  to 
express.  Thus,  if  a  blank  be  left  in  an  instrument  or  a  word 
or  phrase  of  importance  omitted  by  mistake,  the  omission 
may  be  supplied,  if  the  instrument  contains  the  means  of 
supplying  it  with  certainty,  otherwise  not,  because  the  par- 
ties in  such  a  case  have  not  made  the  instrument ;  and  the 
law  would  make  it,  and  not  the  parties,  if  it  undertook  to 
supply  by  presumption  an  omitted  word  necessary  to  its 
legal  existence.  And  if  it  permitted  this  to  be  supplied  by 
parol  testimony,  it  would  be  this  testimony,  and  not  a 
written  instrument  which  proved  the  property  or  deter- 
mined the  rights  and  obligation  of  the  parties,  [x)  But 
this  rule  permits  all  fair  and  reasonable  explanation  of 
actual  uncertainty.  Thus,  if  a  guaranty  be  given,  be- 
ginning, "  In  consideration  of  your  having  this  day  ad- 
vanced"  money,  &c.,  which  guaranty  is  invalid  if  in  fact 
for  a  past  or  executed  consideration,  evidence  should  be  re- 
ceived to  show  that  in  point  of  fact  the  advancing  of  the 
money  and  the  giving  of  the  guaranty  were  simultaneous 
acts.  \y) 

(w)  See  (mie,  p.  70,  n.  (s).  239  ;  Castledon  v.  Turner,  3  Atk.  257  ; 

(x)  Miller  v.  Travers,  8  Bing.  244  ;  Hunt  i'.  Hort,  3  Bro.  C.  C.  311. 
Saunderson   v.   Piper,    5  Binij.   N.  C.         («/)  GoUlshode  v.  Swan.  1  Excb.  154. 

425  ;  Baylis  v.  Attorney-General,  2  Atk.  In  this  case,  Pi<jott,  of  counsel  with  the 


76  THE  LAW  OF  CONTRACTS.  [PART  II. 

It  is  not  easy  to  lay  down  rules  which  will  assist  in  deter- 
mining these  difficult  questions,  and  not  be  themselves  open 
to  much  question.  But  we  should  express  our  own  views  on 
this  subject  by  the  following  propositions. 

If  an  instrument  is  intelligible  and  certain  when  its  words 
are  taken  in  their  common  or  natural  sense,  all  its  words 
shall  be  so  taken,  unless  something  in  the  instrument  itself 
gives  to  them,  distinctly,  a  peculiar  meaning,  and  with  this 
meaning  the  instrument  is  intelligible  and  certain  ;  and  in 
that  case  this  peculiar  meaning  shall  be  taken  as  the  mean- 
ing of  the  parties. 

If  the  meaning  of  the  instrument,  by  itself,  is  intelligible 
and  certain,  extrinsic  evidence  is  admissible  to  identify  its 
subjects  or  its  objects,  or  to  explain  its  recitals  or  its  pro- 
mises, so  far,  and  only  so  far,  as  this  can  be  done  without 
any  contradiction  of,  or  any  departure  from,  the  meaning 
which  is  given  by  a  fair  and  rational  interpretation  of  the 
words  actually  used. 

If  the  meaning  of  the  instrument,  by  itself,  is  affected  with 
uncertainty,  the  intention  of  the  parties  may  be  ascertained 
by  extrinsic  testimony,  (c)  and  this  intention  will  be  taken 


defendant,  insisted  upon   the  rule  that  tained  by  bringing  forward  proof  of  de- 

parol  evidence  is  not  admissible  to  vary  clarations  or  conversations  which  took 

the  terms  of  a  written  instrument.    But  place  at  the  time   the  instrument  was 

Parke,   B.,   interrupting   him,  said: —  made,  or  before,  or  afterwards.     After 

"  You  cannot  vary  the  terms  of  a  writ-  considerable  confusion  caused  by  some 

ten  instrument  by  parol  evidence ;  that  anomalous    early  cases,   the   law  upon 

is  a  regular  rule  ;  but  if  you  can  con-  this   point,   especially   in    reference   to 

strue  an  instrument  by  parol  evidence,  wills,  is  clearly  settled  in  England.     lu 

where  that  instrument  is  ambiguous,  in  Beaumont  v.  Fell,  2  P.  Wms.  140,  it 

such  a  manner  as  not  to  contradict  it,  was  permitted  to  be  sliown  that  Ger- 

you  are  at  liberty  to  do  so."     And  the  trude  Yardlcy  was  the  person  intended 

other  judges  use  similar  language.     See  to  be  designated   by  a  testator  by  the 

also  Butcher   v.  Stcuart,  11  M.  &  W.  name   of  Catiicrine   Earidcy,   [see  the 

857,  where,  "in  consideration  of  your  case  stated  aHfc,  p.  62,  n.  (v).     In  Tho- 

having  released,"  was  held  to   have  a  mas  v.  Thomas,  6  T.  R.  671,  there  was 

prospective   and   conditional   meaning,  a  devise  as  follows:  —  "Item.  I  devise 

by  the  help  of  extrinsic  evidence.     And  to  my  granddauglitcr,   Mary  Thomas, 

see   Colbourn  v.  Dawson,  4  Eng.  Law  of  Llechloyd,  in    Merthyr  parish,   &c." 

&  Eq.  378 ;  Uaigh  v.  Brooks,  10  Ad.  &  The   testator  had   a  granddaughter   of 

El.  309.  the  name  of  Elinor  Evans,  living  at  the 

(z)  Sec  a7ite,  p.  70,  n.   (s).     This  in-  place  mentioned  in  the  will,  and  a  grcat- 

tention,  of  course,  is  to  be  ascertained,  granddauglitcr,     Mary    Thomas,    who 

in  all  cases,  except  tiiat  of  latent  ambi-  lived   at   a    place   some   miles   distant 

;/uity  proper,  l)y  a  development  of  the  from    Merthyr  parish.     It  was  held  by 

'irctunstances  under   which   the   instru-  Lord  Kein/on.  that  evidence  of  declara- 

ment  was  made.     It  cannot  be  asccr-  tions  made  by  the  testator,  at  the  time 


ClI.  I.]  CONSTRUCTION  AND  INTERPRETATION  OF  CONTRACTS.    77 

as  the  meaning  of  the  parties  expressed  in  the  instrument,  if 
it  be   a  meaning  which  may  be  distinctly  derived  from    a 


the  will  was  made,  would  have  been 
admissible  to  show  whom  the  testator 
meant  by  the  inaccurate  description. 
See  also  Hampshire  v.  Pierce,  2  Ves. 
216;  Strode  v.  Russel,  2  Vern.  623; 
Price  V.  Page,  4  Vesey,  680  ;  Still 
V.  Hostc,  6  Madd.  192  ;  Hodgson  v. 
Hodgson,  2  Vern.  593.  So  far  as  these 
cases  sanction  the  doctrine  that  evidence 
of  intention  is  admissible  in  cases  not 
falling  under  the  rule  as  to  latent  ambi- 
guiti/,  as  defined  imtc,  p.  70,  n.  (s), 
they  are  overruled  by  the  cases  of 
Miller  v.  Travers,  8  Bing.  244,  and  Doe 
d.  Hiscocks  v.  Hiscocks,  5  M.  &  W. 
363.  In  Miller  v.  Travers,  there  was  a 
devise  of  all  the  testator's  estates  in  the 
county  of  Limerick  and  city  of  Lime- 
rick. At  the  time  of  making  the  will, 
the  testator  had  no  estate  in  the  county 
of  Limerick.  He  had  a  small  estate  in 
the  city  of  Limerick,  inadequate  to 
meet  the  charges  in  the  will,  and  con- 
siderable estates  situate  in  the  county  of 
Clare.  It  was  field,  that  it  could  not  be 
shown  by  parol  evidence  that  the  words 
"county  of  Limerick"  were  inserted  by 
mistake,  instead  of  the  words  "county 
of  Clare  ;  "  and  that  the  testator  intend- 
ed to  devise  his  estate  in  the  county  of 
Clare.  See  the  very  able  review  of  the 
cases  by  Ttndal,  C.  J.  In  Doe  d.  His- 
cocks V.  Hiscocks,  a  testator  devised 
lands  to  his  son  John  Hiscocks  for  life  ; 
and  from  his  decease,  to  his  grandson 
John  Hiscocks,  eldest  son  of  the  said  John 
Hiscocks.  At  the  time  of  making  tiie 
will,  the  testator's  son  John  Hiscocks 
had  been  twice  married ;  by  his  first 
wife  he  had  one  son,  JSiinon;  by  his 
second  wife  an  eldest  son,  John,  and 
other  younger  children,  sons  and  daugh- 
ters. Held,  that  evidence  of  the  instruc- 
tions given  by  the  testator  for  his  will, 
and  of  his  declarations,  was  not  admis- 
sible to  show  which  of  these  two  grand- 
sons was  intended  by  the  description  in 
the  will.  Lord  Abinger,  after  stating 
the  facts,  and  noticing  the  question 
raised,  said: — "It  must  be  admitted 
that  it  is  not  possible  altogether  to  re- 
concile the  different  cases  that  have 
been  decided  on  this  subject ;  which 
makes  it  the  more  expedient  to  investi- 
gate the  principles  upon  which  any  evi- 
dence to  explain  the  will  of  a  testator 
ought  to  be  received.  The  object  in  all 
7* 


cases  is  to  discover  the  intention  of  the 
testator.  The  first  and  most  obvious 
mode  of  doing  this  is  to  read  his  will 
as  he  has  written  it,  and  collect  his  in- 
tention from  his  words.  But  as  his 
words  refer  to  facts  and  circumstances 
respecting  his  property  and  his  family, 
and  others  whom  he  names  or  describes 
in  his  will,  it  is  evident  that  the  mean- 
ing and  api)lication  of  his  words  cannot 
be  ascertained  without  evidence  of  all 
those  facts  and  circumstances.  To  un- 
derstand the  meaning  of  any  writer,  Ave 
must  first  be  apprised  of  the  persons 
and  circumstances  that  are  the  subjects 
of  his  allusions  or  statements ;  and  if 
these  are  not  fully  disclosed  in  his  work, 
we  must  look  for  illustration  to  the  his- 
tory of  the  times  in  which  he  wrote, 
and  to  the  works  of  contemporaneous 
authors.  All  the  facts  and  circum- 
stances, therefore,  respecting  persons  or 
property,  to  which  the  will  relates,  are 
undoubtedly  legitimate,  and  often  ne- 
cessary evidence,  to  enable  us  to  under- 
stand the  meaning  and  application  of 
his  words.  Again,  —  the  testator  may 
have  habitually  called  certain  persons 
or  things  by  peculiar  names,  by  which 
they  were  not  commonly  known.  If 
these  names  should  occur  in  his  will, 
they  could  only  be  explained  and  con- 
strued by  the  aid  of  evidence  to  show 
the  sense  in  which  he  used  them,  in  like 
manner  as  if  his  will  were  written  in 
cypher,  or  in  a  foreign  language.  The 
habits  of  the  testator  in  these  particu- 
lars must  be  receivable  as  evidence  to 
explain  the  meaning  of  his  will.  But 
there  is  another  mode  of  obtaining  the 
intention  of  the  testator,  which  is  by 
evidence  of  his  declarations  of  the  in- 
structions given  for  his  will,  and  other 
circumstances  of  the  like  nature,  which 
are  not  adduced  for  explaining  the 
words  or  meaning  of  the  will,  but  either 
to  supply  some  deficiency,  or  remove 
some  obscurity,  or  to  give  some  effect  to 
expressions  that  are  unmeaning  or  am- 
biguous. Now,  there  is  but  one  case  in 
wliich  it  appears  to  us  that  this  sort  of 
evidence  of  intention  can  properly  be  ad- 
mitted, and  that  is,  where  the  meaning  of 
the  testator's  words  is  neither  ambigu- 
ous nor  obscure,  and  where  the  devise 
is  on  the  face  of  it  perfect  and  intelligi- 
ble, but,  from  some  of  the  circumstances 


78  THE   LAW   OP  CONTRACTS.  [PART  II. 

fair  and  rational  interpretation  of  the  words  actually  used. 
But  if  it  be  incompatible  with  such  interpretation,  the  instru- 
ment will  then  be  void  for  uncertainty,  or  incurable  inaccu- 
racy. 

A  contract  may  be  enforced  in  its  plain  and  natural,  or  in 
its  legal  meaning,  although  evidence  be  offered  teriding  to 
show  that  the  intention  of  the  parties  differed  absolutely 
from  their  language,  unless  the  transaction  be  void  from 
fraud,  illegality,  incapacity,  or  in  some  similar  way. 

Lastly,  no  contract  will  be  enforced,  as  a  contract,  if  it  have 
no  plain  and  natural  or  legal  meaning,  by  itself;  and  if  ad- 
missible extrinsic  evidence  can  only  show  that  the  intention 
of  the  parties  was  one  which  their  words  do  not  express.  But 
the  supposed  contract  being  set  aside  for  such  reasons  as 
these,  the  parties  will  be  remitted  to  their  original  rights  and 
obligations. 

admitted  in  proof,  an  ambiguity  arises  words  he  has  used,  which,  in  their  ordi- 
as  to  which  of  the  two  or  more  things,  nary  sense,  may  properly  bear  that  Con- 
or which  of  the  two  or  more  persons,  struction.  It  appears  to  us  that,  in  all 
(each  answering  the  words  in  the  will,)  other  cases,  parol  evidence  of  what  was 
the  testator  intended  to  express.  Thus,  the  testator's  intention  ought  to  be  ex- 
if  a  testator  devise  his  manor  of  S.  to  eluded,  upon  this  plain  ground,  that  his 
A.  B.,  and  has  two  manors  of  North  will  ought  to  be  made  in  writing ;  and 
S.  and  South  S.,  it  being  clear  he  if  his  intention  cannot  be  made  to  ap- 
means  to  devise  one  only,  whereas  both  pear  by  the  writing,  explained  by  cir- 
are  equally  denoted  by  the  words  he  cumstanees,  there  is  no  will."  See  also 
has  used,  in  that  case  there  is  what  Shore  v.  Wilson,  9  CI.  &  Fin.  355,  S. 
Lord  Bacon  calls  "an  equivocation,"  C.  worn.  Attorney- General  u.  Shore,  II 
i.  e.,  the  words  equally  apply  to  either  Sim.  592,  where  this  whole  matter  is 
manor,  and  evidence  of  previous  inten-  very  fully  discussed.  For  the  present 
tion  may  be  received  to  solve  this  la-  state  of  the  law  upon  the  various  points 
tent  ambiguity ;  for  the  intention  shows  discussed  in  this  last  section,  the  pro- 
what  he  meant  to  do ;  and  when  you  fession  are  very  greatly  indebted  to  the 
know  that,  you  immediately  perceive  admirable  little  treatise  by  Sir  James 
that  he  has    done   it  by    the    general  Wigram  on  the  Interpretation  of  Wills. 


CH.  II.]  THE   LAW   OF   PLACE.  79 


CHAPTER  II. 

THE   LAW   OF   PLACE. 

Sect.  I.  —  Preliminary  Remarks. 

If  one  or  both  parties  to  a  contract  entered  into  it  away 
from  their  home,  or  if  a  contract  or  questions  dependent 
upon  it  come  into  litigation  before  a  foreign  tribunal,  the  con- 
struction of  the  contract,  the  rights  that*  it  gives,  the  obliga- 
tions that  it  imposes,  and  the  remedies  which  either  party  may 
have  may  depend  upon  the  law  of  the  place  where  the  contract 
was  made,  or  the  law  of  the  domicil  of  the  parties,  or  the 
law  of  the  place  where  the  thing  to  which  the  contract  refers 
is  situated,  or  the  law  of  the  tribunal  before  which  the  ques- 
tions are  litigated ;  or,  to  use  the  Latin  phrases  generally 
employed,  the  lex  loci  contractus,  the  lex  domicilii,  the  lex 
loci  rei  sitce,  and  the  lex  fori. 

The  common  law  has  left  many  of  these  questions  unset- 
tled; but  the  immense  immigration  into  this  country,  the 
great  and  growing  intercourse  between  it  and  foreign  na- 
tions, and  the  extreme  facility  and  frequency  of  foreign  tra- 
vel, and,  more  than  this,  the  fact  that  our  own  nation  is  com- 
posed of  thirty-one  independent  sovereignties,  all  combine  to 
give  to  questions  of  this  kind  peculiar  importance,  and,  on 
some  points,  peculiar  difficulty.  It  will  not  be  possible  to 
exhaust  the  consideration  of  these  topics  within  the  space 
which  can,  in  this  work,  be  given  to  them.  But  an  attempt 
will  be  made  to  present  the  leading  principles  which  must 
determine  all  these  questions.  To  few  of  them  is  there  a 
precise  and  certain  answer  given  by  the  common  law ;  and 
some  of  them  have  not  yet  passed  into  adjudication.  By 
writers  on  the  civil  and  continental  law  of  Europe,  they  have 
been,  perhaps  all  of  them,  very  fully  considered ;  but  with 


80  THE   LAW    OF   CONTRACTS.  [PART  II. 

such  a  diversity,  and  irreconcilable  contrariety  of  conclu- 
sion, that  we  shall  confine  ourselves,  as  far  as  possible,  to  the 
common-law  authorities,  (a) 


SECTION  II. 
GENERAL   PRINCIPLES. 

The  first  principle  we  state  is  this.  Laws  have  no  force 
by  their  own  proper  vigor,  beyond  the  territory  of  the  state 
by  which  they  are  made ;  excepting,  for  some  purposes,  the 
high  seas,  or  lands  over  which  no  state  claims  jurisdiction. 
Without  this  liraitj  they  have  no  sanction  ;  obedience  can- 
not be  compelled,  nor  disobedience  punished  ;  and  no  con- 
tiguity of  border,  and  no  difference  of  magnitude  or  power 
between  two  independent  states  can  affect  this  rule.  For  if 
the  state,  a  law  of  which  is  broken,  sends  its  officers  into 
another,  and  there  by  force  or  intimidation  acts  in  reference 
to  this  breach  as  it  might  act  at  home,  such  act  is  wholly 
illegal ;  and  if  it  thus  acts  with  the  consent  of  the  foreign 
state,  within  whose  dominion  it  goes  by  its  officers,  it  is  this 
consent  only  which  legalizes  its  acts,  {b) 


(a)  Mr.  Justice  Story^s  large  work  for  our  decision  is  one  of  law  ;  but  it  is 
on  the  Conflict  of  Laws  is  in  a  great  one  which  grows  out  of  the  conflict  of 
measure  composed  of  these  conflicting  laws  of  different  states.  Our  former 
statements;  and  in  his  closing  para-  experience  had  taught  us  that  ques- 
graph  he  says  : — "It  will  occur. to  the  tions  of  this  kind  are  the  most  embar- 
learned  reader,  upon  a  general  survey  rassing  and  dilficult  of  decision  that  can 
of  the  subject,  that  many  questions  are  occupy  the  attention  of  those  who  prc- 
still  left  in  a  distressing  state  of  uncer-  side  in  courts  of  justice.  The  argument 
tainty,  as  to  the  true  principles  which  of  this  case  has  shown  us  that  tiie  vast 
ought  to  regulate  and  decide  them,  mass  of  learning  which  the  research  of 
Different  nations  entertain  different  counsel  has  furnished,  leaves  the  sub- 
doctrines  and  different  usages  in  regard  ject  as  much  enveloped  in  obscurity  and 
to  them.  The  jurists  of  different  coun-  doubt  as  it  would  have  appeared  to  our 
tries  hold  opinions  opposite  to  each  own  understandings,  had  we  been  called 
other,  as  to  some  of  the  fundamental  on  to  decide,  without  the  knowledge  of 
principles  which  ought  to  have  a  uni-  what  others  had  thought  or  written 
versal  operation,  and  the  jurists  of  the  upon  it." 

same  nation  are  sometimes  as  ill  agreed  (b)  Le  Louis,  2  Dods.  210;  Blanchard 

among   themselves."     And   in  Saul  t'.  r.  liussell,  13  Mass.  4;  BankofAugus- 

His  Creditors,  17  Mart.  571,  Porter,  J.,  ta  v.  Earlc,  13  Pet.  584. 
says  :  —  "  The  only  question  presented 


en.  II.]  THE   LAW    OF   PLACE.  81 

In  the  next  place,  all  laws  duly  made  and  published  by 
any  state  bind  all  persons  and  things  within  that  state,  (c) 
This  is  a  general,  and  perhaps  universal  rule;  for  the  few 
seeming  exceptions  to  it  are  not  so  in  fact.  A  stranger  is 
bound  to  the  state  wherein  he  resides  only  by  a  local  and 
limited  allegiance  ;  but  it  is  one  which  is  sufficient  to  subject 
him  to  all  the  laws  of  that  state,  excepting  so  far  as  they 
relate  to  duties  which  only  citizens  can  perform.  For,  as 
every  state  has  the  right,  in  law,  of  excluding  whom  it  will, 
so  it  may  put  what  terms  and  conditions  it  will  upon  the 
admission  of  foreigners.  All  contracts,  therefore,  which  are 
construed  within  the  state  in  which  they  are  made,  must  be 
construed  according  to  the  law  of  that  state.  The  same 
thing  is  true,  in  general,  when  contracts  are  construed  in 
a  place  other  than  that  in  which  they  are  made ;  but  this 
rule,  and  the  exceptions  to  it,  will  be  considered  presently. 

In  the  next  place,  every  state  may,  by  its  own  laws,  bind 
all  its  own  subjects  or  citizens,  wherever  they  may  be,  with 
all  the  obligations  which  the  home  tribunals  can  enforce. 
Farther  than  this,  if  such  laws  are  made,  they  must  needs 
be  inoperative,  as  they  cannot  be  enforced  beyond  the  juris- 
diction of  the  home  tribunals,  except  with  the  consent  and 
by  the  action  of  the  foreign  state. 

Lastly,  it  may  now  be  said,  on  good  authority,  that  foreign 
laws  may  have  a  qualified  force,  or  some  effect,  within  a 
state,  either  by  the  comity  of  nations,  which  is  one  of  the 
fruits  of  modern  civilization,  or  by  special  agreement,  as  by 
treaty,  or  by  constitutional  requirements,  as  in  the  case  of 
our  own  country,  of  which  the  constitution  requires  that 
"  full  faith  and  credit  shall  be  given  in  each  State  to  the  pub- 
lic acts,  records,  and  judicial  proceedings  of  every  other 
State."  But  in  none  of  these  cases  do  laws  acquire,  strictly 
speaking,  the  force  of  laws,  within  a  sovereignty  which  is 

(c)  "  The  law  and  legislative  govern-  place.     An  Englishman  in  Ireland,  Mi- 

ment  of  every  dominion  equally  affects  norca,  the  Isle  of  Man,  or  the  Planta- 

all  persons  and  all  property  within  the  tions,  has  no  privilege  distinct  from  the 

limits  thereof;  and  is  the  rule  of  deci-  natives."     Per  Lord  Mansjuld,  in  Hall 

sion  for  all  questions  which  arise  there,  v.  Campbell,  Cowp.  208.     See  Euding 

Whoever  purchases,  lives,  or  sues  there,  v.  Smith,  2  Hagg.  Consist.  Rep.  383. 
puts  himself   under  the   laws    of   the 


82 


THE  LAW   OF   CONTRACTS. 


[part  II. 


foreign  to  that  in  which  they  were  enacted  ;  nor  could  this 
be  the  case  without  a  confusion  of  sovereignties.  But  the 
efl'ect  of  such  comity,  aided  in  some  instances  by  special 
agreements,  or  constitutional  requirements,  may  be  stated  to 
be,  that  the  laws  of  civilized  nations  are  permitted  to  have 
some  operation  in  foreign  states,  so  far  as  they  in  no  degree 
conflict  with  the  powers  or  the  rights  of  such  foreign  states, 
or  with  the  operation  of  their  laws,  (d) 

The  first  and  most  general  principle  as  to  the  validity  of  a 
contract,  rests  upon  obvious  reasons,  and  certain  expediency, 
if  indeed  we  may  not  say  that  it  is  founded  in  the  necessi- 
ties of  national  intercourse ;  it  is,  that  a  contract  which  is 
valid  where  it  is  made  is  to  be  held  valid  everywhere.  And 
on  the  other  hand,  if  void  or  illegal  by  the  law  of  the  place 
where  made,  it  is  void  everywhere,  (e) 


(d)  Story  quotes  from  Huberus  a  very 
precise  statement  of  this  rule.  "  Rec- 
tores  imperiorum  id  comiter  agunt,  ut 
jura  cujusque  populi  intra  terminos 
ejus  exercita  teneant  ubique  suam  vim, 
quatenus  nihil  potestati  aut  juri  alterius 
imperantis  ejusque  civiura  prasjudice- 
tur."     Confl.  of  Laws,  §  29,  n.  3. 

(e)  Trimbey  v-  Vignier,  1  Bing.  N. 
C.  151 ;  De  Sobry  v.  De  Laistre,  2  H. 
&  Johns.  191  ;  Willings  v.  Con.sequa, 
Pet.  C.  C.  317;  Pearsall  i-.  Dwight,  2 
Mass.  88  ;  Smith  v.  Mead,  3  Conn.  253 ; 
Medbury  v.  Hopkins,  3  Conn.  472  ; 
Houghton  V.  Page,  2  N.  H.  42 ;  Dyer  v. 
Hunt,  5  N.  H.  401  ;  Whiston'  v.  Stod- 
der,  8  Mart.  95  ;  Andrews  v.  His  Cre- 
ditors, 11  Louis.  464;  Bank  of  United 
States  V.  Donally,  8  Pet.  361  ;  An- 
drews V.  Pond,  13  Id.  65;  Wilcox  v. 
Hunt,  Id.  378  ;  Van  Reimsdyk  r.  Kane, 
1  Gall.  371  ;  Touro  v.  Cassin,  1  N.  & 
McCord,  173;  Robinson  v.  Bland,  2 
Burr.  1077  ;  Burrows  v.  Jcmiiio,  2  Str. 
733  ;  La  Jeune  Eugenie,  2  Mason,  459 ; 
Alves  V.  Hodgson,  7  T.  R.  241  ;  Clegg 
V.  Levy,  3  Campb.  166.  These  two 
rules,  or  rather  this  one  rule,  is  general- 
ly asserted  as  broadly  as  we  have  stated 
it  in  the  text;  and  yet  there  are  cases 
and  dicia  of  weight  that  conflict  with  it. 
In  James  v.  Catherwood,  3  Dowl.  &  Ry. 
190,  where  on  assumpsit  for  money 
lent  in  France,  receipts  were  offered  in 
evidence  not  stamped  as  the  laws  of 
France  required  to  make  them  available 


there,  they  were  received  in  England. 
It  is  true,  that  on  the  motion  for  a  new 
trial,  it  is  put  on  the  ground  that  it  is 
perfectly  well  settled  that  an  English 
court  will  not  take  notice  of  foreign  re- 
venue laws.  This  is  undoubtedly  esta- 
blished. See  Boucher  v.  Lawson,  Cas. 
Temp.  Hardw.  85,  194  ;  Holman  v. 
Johnson,  Cowp.  341 ;  Biggs  v.  Law- 
rence, 3  T.  R.  454  ;  Clugas  v.  Penaluna, 
4  T.  R.  466  ;  Planche  v.  Fletcher,  1 
Doug.  251  ;  Ludlow  v.  Van  Rensselaer, 
1  Johns.  94.  In  Wynne  v-  Jackson,  2 
Russell,  351,  it  was  held  that  a  holder 
might  recover  in  an  English  court  on 
a  bill  drawn  in  'France  on  a  French 
stamp,  though  in  consequence  of  its 
not  being  in  the  form  required  by  the 
French  code,  he  had  failed  in  an  action 
which  he  brought  on  it  in  France.  Even 
if  the  contracts  in  these  cases  were  to 
be  considered  as  violating  only  revenue 
laws,  still,  could  a  contract  made  in 
France,  between  Frenchmen  there,  to 
smuggle  goods  against  the  law  of 
France,  be  held  good  in  England  or 
America  t  Not  on  any  general  prin- 
ciples that  we  are  aware  of;  and  cer- 
tainly not  because  a  contract  made  in 
England  to  smuggle  into  France  would 
be  held  good  in  Euirland ;  for  the  cases 
are  entirely  distinct.  —  So,  if  contracts 
are  made  only  orally,  where  by  law 
they  should  be  in  writing,  they  cannot 
be  enforced  elsewhere  where  writing  is 
not  required.    And  if  made  orally  where 


THE   LAW   OF   PLACE. 


83 


cn.  II.] 

The  general  rule  as  to  the  construction  of  contracts  is, 
that  if  they  relate  to  moveables,  which  have  no  place,  no  se- 
quelam,  in  the  language  of  the  civil  law,  for  "  mobUia  inhce- 
rent  ossibus  domini"  they  are  to  be  construed  according  to 
the  law  of  the  place  where  they  are  made,  or  the  lex  loci  con- 
tractus; (/)  and  if  they  relate  to  immoveables,  or  what  the 
common  law  calls  real  property,  they  are  to  be  construed 
according  to  the  law  of  the  place  where  the  property  is  situ- 
ated, or  the  lex  loci  rei  sites,  (g*)     This  we  have  said  to  be 


writing  is  not  required,  they  can  be  en- 
forced in  other  countries  where  such 
contracts  should  be  in  writing.  Vidal 
V.  Thompson,  11  Mart.  23;  Alves  v. 
Hodgson,  7  T.  R.  241 ;  Clegg  v.  Levy, 
3  Campb.  166. 

(/)  Thorne  v.  Watkins,  2  Ves.  35 ; 
Holmes  v.  Remsen,  4  Johns.  Ch.  487  ; 
Harvey  i'.  Richards,  1  Mason,  412; 
Bruce  v.  Bruce,  2  B.  &  P.  229,  n.  (a)  ; 
Somerville  v.  Somerville,  5  Ves.  750. 
In  the  case  In  re  Ewin,  1  C.  &  Jer.  156, 
Bayleji,  B.,  says  :  —  "It  is  clear,  from 
the  authority  of  Bruce  v.  Bruce,  2  Bos. 
&  Pul.  229,  and  the  case  of  Somerville 
V.  Somerville,  5  Ves.  750,  that  the  rule 
is  that  personal  property  follows  the 
person,  and  it  is  not  in  any  respect  to 
be  regulated  by  the  situs;  and  if,  in  any 
instances,  the  siuis  has  been  adopted  as 
the  rule  by  which  the  property  is  to  be 
governed,  and  the  lex  loci  rei  sitce  re- 
sorted to,  it  has  been  improperly  done. 
Wherever  the  domicil  of  the  proprietor 
is,  there  the  property  is  to  be  considered 
as  situate  ;  and,  in  the  case  of  Somer- 
ville V.  Somerville,  which  was  a  case  in 
which  there  was  stock  in  the  funds  of 
this  country,  which  were  at  least  as  far 
local  as  any  of  the  stocks  mentioned  in 
this  case  are  local,  there  was  a  question 
whether  the  succession  to  that  property 
should  be  regulated  by  the  English  or 
by  the  Scotch  rules  of  succession.  The 
Master  of  the  Rolls  was  of  opinion  that 
the  proper  domicil  of  the  party  was  in 
Scotland.  And  having  ascertained  that, 
the  conclusion  which  he  drew  was,  that 
the  property  in  the  English  funds  was 
to  be  regulated  by  the  Scotch  mode  of 
succession;  and  if  the  executor  had,  as 
he  no  doubt  would  have,  the  power  of 
reducing  the  property  into  his  own  pos- 
session, and  putting  the  amount  into 
his  own  pocket,  it  would  be  distributed 
bv  the  law  of  the  countrv  in  which  the 


party  was  domiciled.  Personal  pro- 
perty is  always  liable  to  be  transferred, 
wherever  it  may  happen  to  be,  by  the 
act  of  the  party  to  whom  that  property 
belongs  ;  and  there  are  authorities  that 
ascertain  this  point,  which  bears  by 
analogy  on  this  case,  namely,  that  if  a 
trader  in  England  becomes  bankrupt, 
having  that  which  is  personal  property, 
debts,  or  other  personal  property,  due 
to  him  abroad,  the  assignment  under 
the  commission  of  bankrupt  operates 
upon  the  property,  and  etlcctually  trans- 
fers it,  at  least  as  against  all  those  per- 
sons who  owe  obedience  to  these  bank- 
rupt laws,  the  subjects  of  this  country." 
In  Milne  v.  Moreton,  6  Binn.  353, 
Til(jhman,  C.  J.,  states  the  rule  with 
some  qualification.  He  says  :  — "  This 
proposition  is  true  in  general,  but  not 
to  its  utmost  extent,  nor  without  seve- 
ral exceptions.  In  one  sense  personal 
property  has  locality,  that  is  to  say,  if 
tangible,  it  has  a  phice  in  which  it  is 
situated,  and  if  invisible  (consisting  of 
debts)  it  may  be  said  to  be  in  the  place 
where  the  debtor  resides ;  and  of  these 
circumstances  the  most  liberal  nations 
have  taken  advantage,  by  making  such 
property  subject  to  regulations  which 
suit  their  own  convenience." 

(g)  Upon  this  general  rule  the  com- 
mon law  and  civil  law  agree  ;  and  the 
American  authorities  are  ex])licit.  See 
Warrender  v.  Warrcnder,  9  Bligh,  127  ; 
Dundas  v.  Dundas,  2  Uow  &  Clarke, 
349 ;  Coppin  v.  Coppin,  2  P.  Wms. 
291  ;  United  States  v.  Crosby,  7  Cranch, 
115;  Cutter  D.  Davenport,  1  Pick.  81  ; 
Hosford  V.  Nichols,  1  Paige,  220  ;  Wills 
?\  Cowper,  2  Hamm.  312  ;  Kerr  v. 
Moon,  9  Wheat.  565 ;  McCormick  i>. 
SuUivant,  10  Id.  192  ;  Darby  v.  Mayer, 
Id.  465.  It  is  a  conclusion  from  this 
rule,  as  will  be  seen  from  the  preceding 
authorities,  that  the  title  to  land  can  be 


84  THE   LAW   OF   CONTRACTS.  [PART  II. 

the  general  rule ;  and  if  we  do  not  call  it  a  universal  rule,  it 
is  because  we  are  not  quite  prepared  to  say  that  none  of  the 
apparent  exceptions  to  the  rule  are  real. 

Thus,  there  is  a  question  involved  in  the  construction  of 
every  contract,  or  rather,  a  question  prior  to  its  construction  ; 
namely,  whether  the  parties  to  the  contract  had  the  power  to 
make  it.  This  is  the  question  of  the  capacity  of  persons ; 
and  it  is  decided  by  what  civilians  term  personal  laws.  And 
the  general  rule  is  said  to  be  that  a  personal  capacity  or  in- 
capacity, created  by  a  law  of  the  state  wherein  a  party  has 
his  domicil,  follows  him  wherever  he  may  go.  (h)  But  if 
this  be  the  rule  of  law,  it  is  not  one  of  universal  application, 
and  in  some  cases  needs  important  qualification.  For  this 
rule  as  to  capacity  may  come  into  direct  conflict  with  the 
general  rule,  that  all  persojial  contracts  are  to  be  construed 
and  applied  according  to  the  law  of  the  place  where  they 
were  made,  and  when  this  conflict  exists,  the  important  ques- 
tion arises,  which  rule  shall  prevail. 


SECTION  III. 
CAPACITY    OF   PARTIES. 

It  must  be  remembered  that  the  rule  is  that  persons  have 

capacity  to  contract ;  and  the  exception  is,  their  want  of  ca- 

given  or  taken,  acquired  or  lost,  only  positive  transfer  can  be  made  of  such 
in  conformity  with  all  the  requirements  property,  except  in  the  manner  pro- 
of the  law  of  the  place  where  the  real  scribed  by  the  local  refrulations." 
estate  is  situated.  Some  question  may  (A)  Tliis  rule  is  laid  down  by  most  of 
exist  as  to  what  comes  under  this  rule  the  great  multitude  of  writers,  who  may 
as  to  immoveables.  In  Eobinson  v.  ha  cited  as  authorities  of  greater  or  less 
Bland,  2  Burr.  1079,  Lord  Mansjield  weight,  on  the  law  of  Continental  Eu- 
applies  it  to  public  stock.  And  Mr.  rope ;  but  it  does  not  seem  to  liave 
Justice  Story,  Confl.  of  Laws,  §  383,  been  asserted,  in  so  many  words,  by  the 
says: — "  The  same  rule  may  properly  courts  of  common  law.  In  Iluding  v. 
a])])ly  to  all  other  local  stock  or  funds,  Smith,  2  Ilagg.  Consist  Iicp.  391,  Lord 
although  of  a  personal  nature,  or  so  Sloivell  discusses  it  somewhat.  And  it 
made  l)y  the  local  law,  such  as  bank  seems  to  be  implied  in  many  of  the 
stock,  insurance  stock,  turnpike,  canal,  cases  to  wliich  we  shall  refer,  in  the  far- 
and  bridge  shares,  and  other  incorpo-  ther  consideration  of  the  question  of 
real  property,  owing  its  existence  to,  or  capacity, 
regulated  by,  peculiar  local  laws.    No 


CH.  II.]  THE   LAW   OF   PLACE.  85 

pacity.  This  exception,  therefore  must  be  made  out.  And 
capacity  will  be  held  not  only  when  there  is  no  evidence  and 
no  rule  against  it,  but  when  the  evidence,  or  the  rules,  or  the 
argument,  leave  it  in  doubt.  • 

Incapacities  are  of  two  kinds  ;  those  which  may  be  called 
natural  incapacities,  as  absolute  duress,  insanity,  or  imbe- 
cility ;  and  those  which  may  be  called  artificial,  because 
arising  by  force  of  local  laws,  from  marriage,  or  slavery,  or 
such  other  causes  as  are  made  grounds  of  incapacity  only  by 
positive  laws,  which  vary  in  different  states.  And  then  there 
is  a  third  kind  between  these  two,  or  composed  of  these  two, 
when  a  natural  incapacity,  as  that  of  an  actual  infant,  passes 
by  imperceptible  degrees  into  the  artificial  incapacity  of  a 
legal  infant  of  twenty  years  of  age.  In  regard  to  the  first 
class,  it  is  true  that  wherever  the  incapacitated  person  goes 
he  carries  his  incapacity  with  him  ;  but  this  is  perhaps  not 
because  his  incapacity  was  created  by  a  law  of  the  home 
from  which  he  came,  for  it  was  only  recognized  by  that  law; 
and  being  recognized  by  every  other  law,  he  finds  himself 
under  the  same  incapacity  in  every  state,  because  he  finds  a 
similar  law  everywhere  in  force.  For  this  law  is  one  which 
may  well  be  called  a  law  of  nature ;  that  is,  a  law  enacted 
by  the  supreme  creator  of,  and  lawgiver  for,  human  nature, 
and  as  wide  in  its  scope  and  operation  as  that  nature. 

When  we  come  to  the  incapacities  of  the  second  kind, 
that  is,  to  artificial  incapacities,  the  law  is  not  so  certain. 
Upon  the  law  of  the  capacity  of  the  person,  and  the  law  of 
the  place  of  the  contract,  on  either  or  on  both,  the  law  of 
construction  of  contracts  as  to  place,  would  seem  to  be 
founded.  Nor  is  there  any  difficulty  in  applying  either 
alone,  or  both  if  they  are  coincident ;  but  if  they  are  both 
applicable,  but  would  lead  to  directly  opposite  results,  this 
collision  gives  rise  to  questions  which  it  would  be  impossi- 
ble to  settle  absolutely,  even  on  the  authority  of  civilians  ; 
because  there  is  an  irreconcilable  difference  among  them. 
But,  judging  as  well  as  we  may,  from  the  general  principles 
which  belong  to  this  subject,  we  should  prefer  the  opinion 
of  those  who  hold,  that  when  the  two  rules  above  mentioned 
come  into  conflict,  that  which  gives  controlling  power  to  the 

VOL.  II.  8 


86 


THE   LAW    OF   CONTRACTS. 


[part  II. 


law  of  the  place  of  the  contract  should  prevail.  We  might 
admit  a  distinction  sometimes  intimated,  and  say  that  a 
question  which  related  only  to  the  state  and  condition  of  a 
person,  without  reference  to  other  parties,  would  generally 
be  construed  by  the  law  of  his  domicil,  wherever  he  might 
be.  But  if  one  away  from  his  domicil  disposes  of  his  mova- 
ble property,  or  enters  into  personal  contracts,  we  cannot 
but  tliink  that  the  law  of  the  place  in  which  he  does  these 
acts  would  be  applied  to  them,  (i) 


(i)  On  this  point,  as  on  most  of  the 
questions  of  the  lex  loci,  the  opinions  of 
civilians  stand  opposed  to  each  other 
irreconcilably  ;  the  great  majority,  both 
in  number  and  weight,  assert  that  the 
law  of  the  domicil  determines  every- 
where the  capacity  of  the  party  ;  but 
they  differ  very  much  in  the  application 
of  the  rule  ;  and  some  of  high  authority 
hold  a  different  doctrine.  But  on  this 
subject  we  must  refer  to  such  works  as 
Livermore's  Dissertations,  Story's  Con- 
flict of  Laws,  Burge's  Commentaries  on 
Colonial  and  Foreign  Laws,  and  Henry 
on  Foreign  Law,  in  which  these  author- 
ities are  cited  and  compared ;  and  the 
student  who  would  push  his  inquiries 
farther  in  this  direction  will  be  guided 
to  the  original  authors,  and  referred  to 
the  places  in  which  these  questions  are 
considered.  The  whole  discussion  of 
this  question,  among  civilians,  turns 
upon  the  exact  distinction  between  real 
and  personal  statutes  ;  a  distinction 
wholly  unknown  to  the  common  law. 
And  indeed  they  understand  by  "sta- 
tute "  not  what  we  do,  but  any  thing 
which  has  the  force  of  law,  whatever  be 
its  origm  and  authorization.  Ke7it  says 
that  while  the  continental  jurists  gene- 
rally adopt  the  law  of  the  domicil,  (sup- 
posing it  to  come  in  conflict  with  the 
law  of  the  place  of  the  contract,)  the 
English  common  law  adopts  the  lex  loci 
contractus.  See  2  Kent's  Com.  459,  n. 
(6).  We  have  not,  however,  been  able 
to  fmd  direct  and  conclusive  authority 
for  this.  In  Male  v.  Roberts,  3  Esp. 
163,  in  which  the  plaintiff  sought  to  re- 
cover money  paid  for  tlie  defendant  in 
Scotland,  and  the  defence  was  infancy, 
Lord  Eldon  said  :  —  "  It  appears  from 
the  evidence  in  this  cause  tiiat  the  cause 
of  action  arose  in  Scotland ;  tlie  con- 
tract must  be  therefore  governed  by  the 
laws  of  that  country  where  the  contract 
arises.     Would  infancy  be  a  good  de- 


fence by  the  law  of  Scotland,  had  the 
action  been  commenced  there  ?  What 
the  law  of  Scotland  is  with  respect  to 
the  right  of  recovering  against  an  infant 
for  necessaries  I  cannot  say  ;  but  if  the 
law  of  Scotland  is,  that  such  a  contract 
as  the  present  could  not  be  enforced 
against  an  infant,  that  should  have  been 
given  in  evidence,  and  I  hold  myself 
not  warranted  in  saying  that  such  a 
contract  is  void  by  the  law  of  Scot- 
land, because  it  is  void  by  the  law  of 
England.  The  law  of  the  country  where 
the  contract  arose  must  govern  the  con- 
tract ;  and  what  that  law  is  should  be 
given  in  evidence  to  me  as  a  fact.  No 
such  evidence  has  been  given ;  and  I 
cannot  take  the  fact  of  what  that  law  is 
without  evidence."  It  would  seem  in 
this  case,  though  not  distinctly  stated, 
that  both  parties  were  domiciled  in  Eng- 
land. In  Saul  V.  His  Creditors,  17 
Mart.  569,  590,  which  it  miglit  be  sup- 
posed would  be  governed  rather  by  the 
rules  of  the  civil  law,  the  court  say  :  — 
"  A  personal  statute  is  that  wliich  fol- 
lows and  governs  the  party  sul)ject  to 
it  wherever  he  goes.  The  real  statute 
controls  things,  and  docs  not  extend 
beyond  the  limits  of  the  country  from 
which  it  derives  its  authority.  The 
personal  statute  of  one  country  controls 
the  personal  statute  of  another  country, 
into  which  a  party  once  governed  by 
the  former,  or  who  may  contract  under 
it,  should  remove.  But  it  is  subject  to  a 
real  statute  of  the  place  where  the  per- 
son subject  to  the  personal  sliould  fix 
himself,  or  where  the  property  on  which 
the  contest  arises  may  be  situated." 
Afterwards,  p.  597,  in  illustration  of 
these  rules,  the  court  say  what  we 
should  suppose  to  mean  simj)ly  tliat  tlie 
law  of  the  place  of  the  contract  over- 
comes the  law  of  the  domicil  as  to  ca- 
pacity. "  Now  supposing  the  case  of 
our  law  fixing  the  age  of  majority  at 


CH.  II.]  THE   LAW    OF   PLACE.  87 

Thus,  if  a  woman  of  the  age  of  nineteen,  whose  doniicil 
was  in  Massachusetts,  having  gone  into  Vermont,  (where  wo- 
men are  so  far  adult  at  eighteen  that  they  may  bind  them- 
selves at  that  age  for  things  not  necessary,)  there  bought  non- 
necessaries,  and  gave  her  note  for  the  price,  and  while  she 
was  there  the  note  was  put  in  suit  against  her,  we  do  not 
think  that  she  could  interpose  the  law  of  Massachusetts  in 
her  defence.  And  if  a  woman  of  that  age,  whose  domicil 
was  in  Vermont,  came  into  Massachusetts,  and  there  bought 
non-necessaries,  and  was  sued  for  the  price,  we  think  she 
could  interpose  the  defence  of  infancy.  If,  in  the  first  case, 
the  woman  returned  to  Massachusetts,  and  the  note  was 
sent  after  her  and  put  in  suit  there,  it  might  admit  of  more 
question  whether  the  law  of  the  forum  would  now  prevail 
over  the  law  of  the  place  of  the  contract,  and  constitute  a 
good  defence  ;  or  if  in  the  second  case  the  woman  returned 
to  Vermont,  and  suit  was  brought  against  her  there,  it  might 
admit  of  more  question,  whether  the  law  of  the  forum  would 
now  prevail  over  the  law  of  the  place  of  the  contract,  and 
enforce  the  contract,  negativing  this  defence.  But  this 
doubt  would  be  in  fact  a  doubt  whether,  when  the  law  of 
the  domicil  and  the  law  of  the  place  of  the  contract  conflict, 
the  law  of  the  forum  may  not  come  in,  and  decide  in  favor 
of  the  law  of  the  domicil,  if  that  be  also  the  place  of  the 
forum,  or  in  favor  of  the  law  of  the  place  of  the  contract,  if 
that  be  the  place  of  the  forum.  But  we  are  not  satisfied 
that  such  would  be  the  rule. 

twenty-five,  and  the  country  in  which  a  protection  against  his  engagements,  the 
man  was  born  and  lived,  previous  to  laws  of  a  foreign  country,  of  which  the 
his  coming  here,  placing  it  at  twenty-  people  of  Louisiana  had  no  knowledge; 
one,  no  objection  could  be  perhaps  made  and  would  we  tell  them  that  ignorance 
to  the  rule  just  stated,  and  it  may  be,  of  foreign  laws,  in  relation  to  a  contract 
and  we  believe  would  be  true,  that  a  con-  made  here,  was  to  prevent  them  en- 
tract  made  here  at  any  time  between  the  forcing  it,  though  the  agreement  was 
two  periods  already  mentioned  would  binding  by  those  of  their  own  state  f 
bind  him.  But  reverse  the  facts  of  Most  assuredly  we  would  not.  16 
this  case,  and  suppose,  as  is  the  truth,  Martin,  193.  Take  another  case.  By 
that  our  law  placed  the  age  of  majority  the  laws  of  this  country  slavery  is  per- 
at  twenty-one ;  that  twenty-five  was  the  mitted,  and  the  rights  of  the  master 
period  at  which  a  man  ceased  to  be  a  can  be  enforced.  Suppose  the  indivi- 
minor  in  the  country  where  he  resided ;  dual  subject  to  it  is  carried  to  England 
and  thatattheage  of  twenty-four  he  came  or  Massachusetts  ;  —  would  their  courts 
into  this  State,  and  entered  into  con-  sustain  the  argument  that  his  state  or 
tracts  ;  — would  it  be  permitted  that  he  condition  was  fixed  by  the  laws  of  his 
should,  in  our  courts,  and  to  the  de-  domicil  of  origin?  We  know  they 
raand  of  one  of  our  citizens,  plead,  as  a  would  not." 


88  THE  LAW   OF    CONTRACTS.  [PART  11. 

There  is  another  principle  which  may  have  a  bearing  upon 
this  question  ;  for  it  seems  reasonable  at  least  to  say  that  a 
contract,  void  or  voidable  at  its  inception,  cannot  be  made 
valid  against  the  will  of  the  party  having  the  right  of  avoid- 
ance, by  a  mere  change  of  his  place,  nor  can  a  contract  valid 
and  enforceable  when  and  where  entered  into  be  made  in- 
valid in  this  way.  Any  woman  over  eighteen,  buying  on 
credit  non-necessaries  in  Vermont,  makes  a  contract  which 
is  valid  then  and  there,  and  any  woman  of  that  age  making 
such  a  contract  in  Massachusetts  makes  one  which  is  not 
valid  then  and  there ;  and  these  contracts  must  remain,  the 
first  valid  and  the  second  invalid,  wherever  it  may  be  sought 
to  enforce  them,  unless,  in  the  first  case,  a  foreign  law  is  ad- 
mitted to  destroy  the  validity  of  the  contract,  and  in  the 
second  case,  comes  in  to  give  the  contract  validity  and  force  ; 
and  we  think  a  foreign  law  can  do  neither  of  these  things. 

By  the  second  of  the  general  principles  which  we  pre- 
sented early  in  this  chapter,  the  laws  of  every  state  have  a 
binding  force  over  all  persons  and  things  within  its  domi- 
nion ;  and  contracts  are  among  the  things  which  it  thus  con- 
trols. It  must  be  true,  therefore,  that  these  laws  govern  and 
determine  all  contracts  made  within  their  territorial  scope, 
or,  in  other  words,  that  every  contract  must  be  construed 
according  to  the  law  of  the  place  of  the  contract,  unless  we 
are  at  liberty  to  say  one  of  two  things ;  either  that  the  fo- 
reign law  affected  the  contract,  and  controlled  the  home  law 
at  the  time  the  contract  was  made,  or  else  that  it  had  this 
effect  subsequently.  Now,  to  say  that  the  foreign  law  thus 
operated  upon  the  contract  at  its  inception,  would  be  to  say 
that  a  foreign  law  entered  into  a  foreign  and  independent 
state  with  a  power  of  its  own,  and  there  by  this  power  re- 
sisted and  controlled  the  home  law,  and  importantly  affected 
the  rights  of  parties  who  made  the  contract  under  the  home 
laws.  And  this  would  be  giving  to  this  foreign  law  a  power 
far  beyond  what  it  could  derive  from  any  principle  which 
can  be  admitted  to  belong  to  the  comity  of  nations,  (j)     On 

(j)  In   Saul    V.    His    Creditors,   17  and  positive  rules,  wc  may  safely  be- 

Mart.    595,   the   court  say,   after  quot-  licve   tiiis   illustrious   man   would    not 

ing  from  Chancellor  W  Agusse.au  :  —  "If  have  left  it  in  doubt,  for  if  any  thing  be 

the  subject  had  been  susceptible  of  clear  more  remarkable  in  him  than   his  ge- 


CH.  II.]  THE   LAW    OF   PLACE.  89 

the  other  hand,  if  we  admit  that  the  contract  when  made 
was  valid  only  according  to  the  laws  of  the  country  where  it 
was  made,  but  say  that  afterwards  another  law,  the  law  of 
the  domicil  of  a  party,  or  of  the  forum  before  which  the  ques- 
tion comes,  varies  the  contract  in  important  respects,  we  say 
no  less  than  that  a  law  which  the  parties  in  making  their 
contract  could  not  be  supposed  to  contemplate,  and  were  not 
affected  by,  afterwards  made  a  new  contract  for  them,  or 
established  or  discharged  relations  or  obligations  between 
them,  against  or  without  their  will  and  consent. 

Upon  the  whole  we  are  of  opinion  that  the  rule  which  re- 
quires that  every  contract  should  be  construed  according  to  the 
law  of  the  place  where  it  was  made,  is  very  nearly  universal. 
The  exceptions  we  should  admit  are,  principally,  those  found- 
ed upon  the  possible  fact  that  the  law  of  a  state  might  oppose 
or  vary  the  law  of  natural  capacity  or  incapacity,  or  might 
permit  a  contract  which  could  be  performed  only  by  acts  in 
another  country  which  would  be  distinctly  and  positively 
prohibited  by  the  law  of  that  country.  And  even  in  such 
cases  it  might  more  properly  be  said,  that  the  contract  should 
be  construed  according  to  the  law  of  the  place  where  it  was 
made,  but  that  whenever  such  construction  could  make  it  ille- 
gal, it  would  be  for  that  reason  void.  But  the  illegality  here 
meant  is  not  that  of  an  infant's  contract  for  non-necessaries, 
or  the  contract  of  a  married  woman.  When  it  is  said  that 
he  or  she  cannot  do  this,  it  is  meant  only  that  the  law  per- 

nius  and  his  knowledge  it  is  the  extra-  it  must  necessarily  depend  on  a  variety 

ordinary    fulness    and    clearness    with  of  circumstances   which  cannot  be  re- 

which  he  expresses  himself  on  all  ques-  duced  within  any  certain   rule.     That 

tions  of  jurisprudence.   When  he,  there-  n'o  nation  will  suffer  the  laws  of  another 

fore,  and  so  many  other  men  of  great  to  interfere  with  her  own,  to  the  injury 

talents  and  learning,  are  thus  found  to  of  her  citizens  :  that  whether  they  do  or 

fail  in  fixing  certain  principles,  we  are  not  must  depend  on  the  condition  of  the 

forced  to  conclude  that  they  have  failed  country   in   whiih   the   foreign   law   is 

not  Irom  want  of  ability,  but  because  sought  to  be  enforced  —  the  particular 

the  matter  was  not  susceptible  of  being  nature  of  her  legislation  —  her  jiolicy, 

settled   on    certain    principles.      They  and   the  character  of  her  institutions, 

have  attempted  to  go  too  far.     To  de-  That   in  the  conflict  of  laws,  it  must 

fine  and  fix  that  which  cannot  in  the  be  often  a  matter  of  doubt  which  should 

nature  of  things  be  defined  and  fixed,  prevail,  and  that  whenever  that  doubt 

They  seem  to  have  forgotten  that  they  does  exist,  tiie  court  which  decides  will 

wrote  on  a  question  which  touched  the  prefer  the  law   of  its   own  couutry  to 

comity  of  nations,  and  that  that  comity  that  of  the  stranger." 
is,  and  ever  must  be.  uncertain.     That 

8* 


90  THE   LAW   OF   CONTRACTS.  [PART  II. 

mits  a  party  making  such  a  contract  to  treat  it  as  void ;  not 
that  the  law  prohibits  such  parties  from  making  these  con- 
tracts. 

All  of  these  questions  are  sometimes  much  complicated 
with  other  questions,  as  where  the  domicil  of  the  party  is, 
or  where  was  the  place  in  which  the  contract  was  made  ;  and 
become  in  this  way  much  more  difficult. 


SECTION  IV 

DOMICIL. 

Every  person  has,  in  law,  a  home,  or  domicil ;  (k)  and 
every  domicil  which  one  has,  whether  the  original  domicil  or 
a  subsequent  one,  continues  until  a  new  one  is  acquired,  (l) 
and  when  a  new  one  is  acquired,  the  former  domicil 
ceases,  (m)  because  no  person  can  have  more  than  one  do- 
micil at  the  same  time,  (n)  One's  domicil,  or  home,  is  in 
the  country  in  which  he  permanently  resides.  To  the  idea 
of  domicil,  or  home,  two  elements  belong ;  one,  that  of  act, 
the  other,  that  of  intent.  The  very  beautiful  definition  of 
the  Roman  law  cannot  be  literally  and  adequately  translated 
into  English.  "  It  is  not  doubted  that  individuals  have  a 
home  in  that  place  where  each  one  has  established  his  hearth 
and  the  sum  of  his  possessions  and  his  fortunes ;  [larem  re- 
rumque  ac  fortunarum  siiarum  sunmiam  constituit,)  whence  he 
will  not  depart  if  nothing  calls  him  away  ;  whence  if  he  has 
departed  he  seems  to  be  a  wanderer,  and  if  he  returns  he 
ceases  to  wander."  (o) 

The  questions  of  domicil  sometimes  present  much  diffi- 
culty in  determining  what  is  the  measure,  or  what  is  the  evi- 
dence of  this  residence  in  fact,  or  in  intent.  Both  are  neces- 
sary to  constitute  a  domicil.     Both  are  implied  in  favor  of 

{k)  Crawford  v.  "Wilson,  4  Barb.  504.    water,  23  Pick.  170;  Thorndike  i\  The 
(/)  Id.  {m)  Id.  City  of  Boston,  1  Mctc.  242. 

(«)  Id. ;   Abington  v.  North  Bridge-        (o)  Code,  Lib.  10,  tit.  39,  7. 


cii.  il]  the  laav  op  place.  91 

the  home  which  one  has  by  birth  and  parentage,  and  subse- 
quent inhabitancy.  The  dwelling  in  a  place,  or  even  being 
there,  may  constitute  primd  facie  evidence  of  domicil ;  but 
it  is  evidence  which  may  be  rebutted,  [p)  And  it  is  quite 
certain  that  no  definite  period  of  time,  no  exact  manner  of 
residence,  no  precise  declarations  or  specific  acts,  are  neces- 
sary to  ascertain  domicil,  or  perhaps  suffice  to  determine 
domicil ;  although  the  Supreme  Court  of  the  United  States 
have  intimated  that  an  exercise  of  the  right  of  suffrage 
would  be  the  highest  evidence  ;  and  perhaps  it  would  be  con- 
clusive against  the  party,  {q) 

When  a  domicil  is  in  any  way  acquired,  it  may  be 
changed,  by  a  change  both  in  fact  and  in  intent,  but  not  by 
either  change  alone ;  the  change  in  fact  not  being  enough 
without  intent,  (r)  nor  the  change  in  intent  without  the 
change  in  fact.  (5)  One  who  goes  abroad  animo  revertenjdi, 
does  not  change  his  domicil,  because  only  the  fact  of  resi- 
dence is  changed,  and  not  the  intent.  But  if  he  remains 
very  long  abroad,  and  in  one  place,  the  intent  may  be  infer- 
red from  the  fact.  And  this  inference  may  be  made  against 
the  express  declarations  and  assertions  of  the  person,  (t) 
For  the  fact  and  the  intent  together  determine  the  domicil, 
and  not  the  language  ;  nor  is  this  important  except  as  evi- 
dence of  intent.  If  therefore  one  insists  upon  his  purpose  of 
return,  and  the  preservation  of  his  domicil,  but  the  facts  are 
such  as  to  lead  to  and  justify  the  belief  that  this  expressed 
intention  of  return  is  but  a  false  pretence,  made  for  the  sake 
of  preserving  as  long  as  he  can  the  rights  of  domicil,  while 
in  fact  he  means  to  abide  where  he  now  is,  the  intent  will 

(p)  Crawford  v.  Wilson,  4  Barb.  504,  which  show  a  permanent  location,  un- 

519  ;  Bruce  v.  Bruce,  2  B.  &  P.  229,  n.  explained,  may  be  sufficient." 

(a) ;  Sears  v.   The  City  of  Boston,    1  (r)  Bradley  v.  Lowry,  1  Speers's  Eq. 

Mete  250.  1 ;  Granby  v.  Amherst,  7  Mass.  1  ;  Lin- 

(9)  Shelton  v.  Tiffin,  6  How.  185.  coin  v.  Hapgood,  11  Mass.  350;  Har- 
In  this  case  the  court  say  :  —  "  On  a  vard  College  r.  Gore,  5  Pick.  370;  Cad- 
change  of  domicil  from  one  State  to  waladcr  v.  Howell,  3  Harr.  138 ;  Wil- 
another,  citizenship  may  depend  upon  ton  v.  Falmouth,  15  Maine,  479. 
the  intention  of  the  individual.  But  (s)  The  Attorney-General  v.  Dunn, 
this  intention  may  be  shown  more  satis-  6  M.  &  W.  511  ;  HallowuU  v.  Saco,  5 
factorily  by  acts  than  declarations.  An  Greenl.  143  ;  The  State  v.  Hallctt,  8 
exercise  of  the  right  of  suffrage  is  con-  Ala.  159;  Williams  r.  Whiting,  11 
elusive  on  the  subject ;  but  acquiring  a  Mass.  424. 
right  of  suffrage,  accompanied  by  acts  (0  See  supra,  n.  ((/). 


92 


THE   LAW   OF   CONTRACTS. 


[part  II. 


govern,  and  the  change  of  domicil  will  be  complete.  It 
seems  to  be  agreed  that  "residence"  and  "inhabitancy" 
mean  the  same  thing ;  (u)  but  whether  they  both  mean  the 
same  thing  as  "  domicil  "  is  not  so  clear,  (v)  It  is,  how- 
ever, rather  a  dispute  about  the  meaning  and  use  of  words, 
than  a  question  of  principle  ;  for  all  admit  that  one  may 
dwell  for  a  considerable  time,  and  even  regularly  during  a 
large  part  of  the  year,  in  one  place,  or  even  in  one  State,  and 
yet  have  his  domicil  in  another,  (w)  If  one  resides  in  Bos- 
ton five  months  in  the  twelve,  including  the  day  on  which 
residency  determines  taxation,  and  the  other  seven  months 
at  his  house  in  the  country,  he  will  be  taxed  in  Boston,  and 
may  vote  there,  and  his  domicil  is  there,  {x) 


(u)  Roosevelt  v.  Kellogg,  20  Johns. 
208 ;  In  tlie  matter  of  Wrigley,  4  Wend. 
602,  8  Id.  134. 

(v)  Sec  Jefferson  v.  Washington,  19 
Maine,  293 ;  In  the  matter  of  Thomp- 
son, 1  Wend.  45;  Frost  v.  Brisbin,  19 
Wend.  1 1  ;  Thorndike  v.  Th?  City  of 
Boston,  1  Met.  245;  McDaniel  v.  King, 
5  Gush.  473  ;  Cadwalader  v.  Howell,  3 
Harr.  144  ;  Crawford  v.  Wilson,  4  Barb. 
522.  See  also  cases  cited  in  preceding 
note.  In  Crawford  v.  Wilson,  4  Barb. 
522,  the  court  put  soldiers  and  seamen 
on  the  same  footing  with  foreign  minis- 
ters in  respect  to  domicil.  "  The  actual 
residence  is  not  always  the  legal  resi- 
dence or  inhabitancy  of  a  man.  A  fo- 
reign minister  actually  resides  and  is 
personally  present  at  the  court  to  which 
he  is  accredited,  but  his  legal  Residence 
or  inhabitancy,  and  domicil,  are  in  his 
own  country.  His  residence  at  the 
foreign  court  is  only  a  temporary  resi- 
dence. He  is  there  for  a  particular 
purpose.  So  soldiers  and  seamen  may 
be  legal  residents  and  inhabitants  of  a 
place,  although  they  may  have  been  ab- 
sent therefrom  for  years.  They  do  not 
lose  their  residence  or  domicil  by  fol- 
lowing their  profession."  So  in  Thorn- 
dike V.  The  City  of  Boston,  1  Met.  242, 
the  court  say  :  —  "If  a  seaman  without 
family  or  property  sails  from  the  place 
of  his  nativity,  wliich  may  bo  consider- 
ed his  domicil  of  origin,  although  he 
may  return  only  at  long  intervals,  or 
even  be  absent  many  years,  yet  if  he 
does  not  by  some  actual  residence  or 
other  means  acquire  a  domicil    else- 


where, he  retains  his  domicil  of  origin." 
See  also  Sears  t;.  The  City  of  Boston, 
1  Met.  250. 

(w)  Frost  V.  Brisbin,  19  Wend.  11. 

(x)  This  is  the  established  rule  and 
common  practice  in  Massachusetts,  as 
to  the  right  of  taxing  one  not  actually  a 
resident.  It  is  provided  by  statute  that 
personal  estate  shall  be  assessed  to  the 
owner  in  the  town  where  he  shall  be  an 
inhabitant  on  the  first  day  of  May.  Rev. 
Stat.  ch.  7,  sect.  9.  It  is  held  that  in- 
habitancy under  this  statute  means  sub- 
stantially the  same  thing  as  domicil. 
Thorndike  v.  The  City  of  Boston,  1 
Mete.  242.  In  this  case  a  citizen  of 
Boston,  who  had  been  at  school  in  the 
city  of  Edinburgh  when  a  boy,  and 
formed  a  predilection  for  that  place  as 
a  residence,  and  had  expressed  a  deter- 
mination to  reside  there,  if  he  ever 
should  have  the  means  of  so  doing,  re- 
moved with  his  family  to  that  city,  in 
1836,  declaring,  at  the  time  of  his  de- 
parture, that  he  intended  to  reside 
abroad,  and  that  if  he  should  return  to 
the  United  States  he  should  not  live  in 
Boston.  He  resided  in  Edinburgh  and 
the  vicinity,  as  a  housekeeper,  taking  a 
lease  of  an  estate  for  a  term  of  years, 
and  endeavored  to  engage  an  American 
to  enter  his  family  for  two  years,  as  in- 
structor of  his  cliildrcn.  Before  he  left 
Boston  he  made  a  contract  for  the  sale 
of  his  mansion-house  and  furniture 
there,  but  shortly  afterwards  procured 
said  contract  to  be  annulled,  (assigning 
as  liis  reason  therefor,  that  in  case  of 
his   death   in   Europe,  his  wife  might 


CII.  II.] 


THE    LAW    OF    PLACE. 


98 


A   woman    marrying   takes  her   husband's   domicil,    and 


wish  te  return  to  Boston,)  and  let  liis 
house  and  furniture  to  a  tenant.  Held., 
that  lie  had  clianged  liis  doinieil,  and 
was  not  lialilc  to  taxation  as  an  inliahit- 
ant  of  Boston  in  1837.  Shuu\  C.  J., 
said:  —  "The  questions  of  residence, 
inhabitancy,  or  domicil,  —  for  although 
not  in  all  respects  precisely  the  same, 
they  are  nearly  so,  and  depend  upon 
much  the  same  evidence,  — are  attended 
with  more  difficulty  than  almost  any 
other  which  are  presented  for  adjudica- 
tion. No  exact  definition  can  be  given 
of  domicil ;  it  depends  upon  no  one  fact 
or  combination  of  circumstances,  but 
from  the  whole  taken  together  it  must 
be  determined  in  each  particular  case. 
It  is  a  maxim,  that  every  man  must 
have  a  domicil  somewhere  ;  and  also 
that  he  can  have  but  one.  Of  course  it 
follows  that  his  existing  domicil  con- 
tinues until  he  acquires  another ;  and 
vice  versa.,  by  acquiring  a  new  domicil 
he  relinquishes  his  former  one.  From 
this  view  it  is  manifest  that  very  slight 
circumstances  must  often  decide  the 
question.  It  depends  upon  the  prepon- 
derance of  tlie  evidence  in  favor  of  two 
or  more  places;  and  it  may  often  occur 
that  the  evidence  of  facts,  tending  to 
establish  the  domicil  in  one  place,  would 
be  entirely  conclusive,  were  it  not  for 
the  existence  of  facts  and  circumstances 
of  a  still  more  conclusive  and  decisive 
character,  which  fix  it,  beyond  question, 
in  another.  So  on  the  contrary,  very 
slight  circumstances  may  fix  one's  do- 
micil, if  not  controlled  by  more  conclu- 
sive facts  fixing  it  in  another  place.  If 
a  seaman,  without  family  or  property, 
sails  from  the  place  of  his  nativity, 
which  may  be  considered  his  domicil 
of  origin,  although  he  may  return  only 
at  long  intervals,  or  even  be  absent 
many  years,  yet  if  he  does  not  by  some 
actual  residence  or  other  means  acquire 
a  domicil  elsewhere,  he  retains  his  do- 
micil of  origin The  ac- 
tual change  of  one's  residence,  with  his 
family,  and  the  taking  up  of  a  residence 
elsewhere,  without  any  intention  of  re- 
turning, is  one  of  the  strong  indications 
of  change  of  domicil,  and,  unless  con- 
trolled by  other  circumstances,  is  deci- 
sive. It  was  for  the  jury  to  determine 
whether  there  were  any  circumstances 
sufficient  to  control  such  conclusion. 
If  the  plaintiff  had  left  Boston,  and 
actually  taken  up  a  residence,  with  his 


family,  in  Scotland,  without  any  inten- 
tion of  returning,  thereby  assuming  that 
country  as  his  definite  abode  and  place 
of  residence  until  some  new  intention 
had  been  formed  or  rcsohition  taken,  he 
had  ceased  to  be  an  inhabitant  of  Bos- 
ton, lialile  to  taxation  for  his  personal 
property."  In  Scars  v.  The  City  of 
Boston,  1  Mete.  250,  a  native  inhabitant 
of  Boston,  intending  to  reside  in  France, 
with  his  family,  departed  for  that  coun- 
try in  June,  1836,  and  was  followed  by 
his  family  about  three  months  after- 
wards. His  dwelling-house  and  furni- 
ture were  leased  for  a  year,  and  he 
hired  a  house  for  a  year  in  Paris.  At 
the  time  of  his  departure  he  intended  to 
return  and  resume  his  residence  in  Bos- 
ton, but  had  not  fixed  on  any  time  for 
his  return.  He  returned  in  about  six- 
teen months,  and  his  family  in  about 
nine  months  afterwards.  Held,  that  he 
continued  to  be  an  inhabitant  of  Boston, 
and  that  he  was  rigiitly  taxed  there, 
during  his  absence,  for  his  person  and 
personal  property.  tShuw,  C.  J.,  said  : 
"Actual  residence,  that  is,  personal  pre- 
sence in  a  place,  is  one  circumstance  to 
determine  the  domicil,  or  the  fact  of  being 
an  inhabitant ;  but  it  is  far  from  being 
conclusive.  A  seaman  on  a  long  voy- 
age, and  a  soldier  in  actual  service,  may 
be  respectively  inhabitants  of  a  place, 
though  not  personally  present  there  for 
years.  It  depends,  therefore,  upon  many 
other  considerations,  besides  actual  pre- 
sence. Where  an  old  resident  and  in- 
habitant, having  a  domicil  from  his 
birth  in  a  particular  place,  goes  to  ano- 
ther place  or  country,  the  great  ques- 
tion whether  he  has  changed  his  domi- 
cil, or  whether  he  has  ceased  to  be  an 
inhabitant  of  one  place,  and  become  an 
inhabitant  of  another,  will  depend  main- 
ly upon  the  question,  to  be  determined 
from  all  the  circumstances,  whether  the 
new  residence  is  temporary  or  perma- 
nent ;  whether  it  is  occasional,  for  the 
purpose  of  a  visit,  or  of  accomplishing 
a  temporary  object;  or  whether  it  is  for 
the  purpose  of  continued  residence  and 
abode,  until  some  new  resolution  bo 
taken  to  remove.  If  the  departure 
from  one's  fixed  and  settled  abode  is 
for  a  purpose  in  its  nature  temporary, 
whether  it  be  business  or  j)lcasurc,  ac- 
companied with  an  intent  of  returning 
and  resuming  the  former  jdace  of  abode 
as  soon  as  such  purpose  is  accomplish- 


94  THE  LAAV  OF  CONTRACTS.  [PART  II. 

changes  it  with  him.  (ij)  A  minor  child  has  the  domicil  of 
his  father,  (z)  or  of  his  mother  if  she  survive  his  father ;  and 
the  surviving  parent,  with  whom  a  child  lives,  by  changing 
his  or  her  own  domicil  in  good  faith,  changes  that  of  the 
child,  (a)     And  even  a  guardian  has  the  same  power,  [b) 


SECTION  V. 

THE   PLACE    OF   THE    CONTRACT. 

The  rules  of  law  in  respect  to  domicil  are  quite  well  settled, 
and  when  difficult  questions  occur,  they  are  usually  questions 
of  fact.  But  the  law  as  to  what  shall  be  deemed  the  place 
of  the  contract  seems  not  to  be  quite  well  settled.  A  con- 
tract is  made  when  both  parties  agree  to  it,  and  not  before ; 
if  it  be  an  oral  contract,  it  is  made  when  the  offer  of  one 
party  is  distinctly  accepted  by  the  other ;  and  if  it  be  made 
by  letter,  then  it  is  made  when  the  party  receiving  the  pro- 
position puts  into  the  mail  his  answer  accepting  it,  or  does 
an  equivalent  act.  If  the  contract  is  in  writing,  it  is  made 
when  ail  the  parties  have  executed  it;  and  therefore  is  not 
made  until  the  latest  party  has  put  to  it  his  name  or  seal,  or 
both,  as  may  be  requisite,  (c)  Suppose,  however,  that  the 
contract  is  made  in  one  place,  but  is  to  be  performed  in  ano- 
ther ;  then,  in  general,  although  perhaps  not  always,  and  for 


ed  ;  in  general,  such  a  person  continues  ton,  by  the  different  intent  of  the  par- 

to   be  an   inhabitant  at   such  place  of  ties  upon  their  departure, 

abode,  for  all  purposes  of  enjoying  civil  (y)  Warrender  v.  Warrender,  9  Bligh, 

and  political  privileges,  and  of  being  89,  103,  104. 

subject  to    civil   duties."     The  learned  {z)  Guier  v.  O'Danicl,  1   Binn.  ,349, 

Chief  Justice   then  remarks   that    tlie  n.  a. 

facts  in  the  present  case  are  considered  (a)  Cuinner  v.  Milton,  2  Salk.  528; 

by  the  court  as  indicating  only  a  casual  Woodend  v.  Paulspury,  2  Ld.   Raym. 

and  temporary  departure  of  the  plain-  1473;  Potinger  v.  Wightman,  3  Mer. 

tiff  from  his  place  of  permanent  rcsi-  67  ;  Holyoke  v.   Ilaskins,    5    Pick.  20. 

dence;  that  Paris  was  his  place  of  tcm-  Sec  Story's  Confl.  of  Laws,  §  46,  n.  (2). 

porary  and  not  of  permanent  abode  ;  (h)  Potinger   v.   Wiglitman,    3    Mer. 

and  that  he  did  not  relinquish  bis  domi-  67  ;  Holyoke   v.   Haskins,    5   Pick.  20. 

cil,  or  cease  to  be  an  inhabitant  of  Bos-  See  Story's  Confl.  of  Laws,  §  46,  n.  (2). 

ton.     The   case   is   distinguished   from  (c)  See  rt»(<e,  vol.  1,  B.  2,  eh.  2,  and 

the  case  of  Thorndike  v.  City  of  Bos-  vol.  1,  p.  440,  n.  (n). 


CII.  II.]  THE   LAW   OF   PLACE.  95 

all  purposes,  the  place  of  payment  or  performance,  is  the 
place  of  the  contract,  (d)  The  most  familiar  instance  is  a 
promissory  note,  made,  that  is,  signed,  we  will  say  in  Bos- 
ton, and  payable  in  New  York.  Is  this  note  to  be  construed 
by  the  law  of  Massachusetts  or  the  law  of  New  York  ?  It 
would  seem,  from  the  authorities,  that  a  contract  may  have 
two  different  places,  the  law  of  which  enters  into  its  con- 
struction. If  it  be  payable,  or  to  be  performed  otherwise, 
where  it  is  signed,  then  that  is  its  only  place.  If  it  be  but  a 
naked  promise,  without  any  special  condition  as  to  the  place 
of  payment,  then  it  must  be  demanded  of  the  maker  where 
he  is,  or  at  his  domicil,  but  it  would  be  regarded  as  made 
where  it  was  signed.  If  expressly  payable  in  a  place  other 
than  that  where  it  is  made,  it  would  seem,  according  to 
some  authorities,  that  the  law  of  either  place  may  be  appli- 
ed ;  thus,  if  the  legal  interest  in  New  York  is  seven  per  cent, 
and  the  legal  interest  in  Boston  is  six  per  cent.,  a  note  on 
interest  payable  at  Boston,  and  made  in  New  York,  would 
be  held  not  to  be  usurious  in  Boston  if  it  expressed  seven 
per  cent,  as  its  rate  of  interest ;  while  accordipg  to  other  au- 
thorities, if  payable  at  Boston,  it  must,  wherever  signed,  con- 
form to  the  law  of  Massachusetts  in  respect  to  interest,  and 
would  therefore  be  usurious  there  if  it  bore  on  its  face  more 
than  six  per  cent.,  although  not  usurious  at  New  York,  where 
it  was  made.  Our  own  opinion  is  decidedly  in  favor  of  the 
former  view.  That  is,  if  a  note  be  made,  bond  fide,  in  one 
place,  expressly  bearing  an  interest  legal  there,  and  payable 
in  another  place  in  which  so  high  a  rate  of  interest  is  not 
allowed,  it  may  be  sued  in  the  place  where  payable,  and  the 
interest  expressed  recovered.  Because  the  parties  had  their 
election  to  make  the  interest  payable  according  to  the  law 
of  either  place  ;  or  to  express  the  same  thing  ditTerently,  they 
may  lawfully  agree  upon  the  largest  interest  allowed  by  the 
law  of  either  place,  or  any  less  interest,  (e)     And  if  no  in- 


(d)  Robinson  i'.  Bland,  2  Burr.  1077;  Thompson  v.  Ketcham,  8  Jolins.  189; 

per  Baldwin,  J.,  in  Strother  v.  Lucas,  Coxy,  the  United   States,  6  Pet.  172; 

12  Pet.  410,  436;  Bellr.  Brucn,  1  IIow.  Fanning   v.  Consequa,  17  .Johns,  511; 

169,  182  ;  Le  Breton  v.  Miles,  8  Paige,  Andrews  v.  Pond,  13  Pet.  65. 
261 ;  Prentiss  v.  Savage,  13  Mass.  23  ;         (e)  This  is  the  result  arrived  at  after 


96 


THE   LAW  OF   CONTRACTS. 


[part  II. 


terest  be  expressed,  then  the  interest  will  be  measured  by  the 
law  of  the  place  where  the  note  is  payable. 


much  consideration,  by  the  Supreme 
Court  of  Louisiana,  in  Depau  v.  Hum- 
phreys, 20  Mart.  1.  Mr.  Justice  Story, 
in  his  Contliet  of  Laws,  discusses  the 
question  at  great  lengtli,  and  with  a 
citation  of  very  numerous  authorities, 
most  of  which  arc  from  the  civil  hiw, 
and  comes  to  an  opposite  conclusion,  if 
we  understand  him  aright,  although 
some  statements  jnight  leave  the  matter 
in  doubt.  In  reference  to  the  case  of 
Depau  V.  Hum])hrcys,  he  says :  —  "Ano- 
ther case  has  arisen  of  a  very  different 
character.  The  circumstances  of  the 
case  were  somewhat  complicated,  but 
the  only  point  for  consideration  there 
arose  upon  a  note,  of  which  the  defend- 
ants were  the  indorsers,  and  with  the 
amount  thereof  they  had  debited  them- 
selves in  an  account  with  the  plaintiff; 
and  which  they  sought  now  to  avoid  up- 
on the  ground  of  usury.  The  note  was 
given  in  New  Orleans,  payable  in  New 
York,  for  a  large  sum  of  money  bear- 
ing an  interest  of  ten  per  cent.,  being 
the  legal  interest  of  Louisiana,  the  New 
York  legal  interest  being  seven  per 
cent.  only.  The  question  was  whether 
the  note  was  tainted  with  usury,  and 
therefore  void,  as  it  would  be,  if  made 
in  New  York.  The  Supreme  Court  of 
Louisiana  decided  that  it  was  not  usu- 
rious ;  and  that  although  the  note  was 
made  payable  at  New  York,  yet  the 
interest  might  be  stipulated  for  either 
according  to  tiie  law  of  Louisiana  or  ac- 
cording to  that  of  New  York.  The 
court  seem  to  have  founded  their  judg- 
ment upon  the  ground,  that  in  the  sense 
of  the  general  rule  already  stated,  there 
are  or  there  may  be  two  places  of  con- 
tract ;  that  in  vviiich  the  contract  is  actual- 
ly made,  and  that  in  wiiich  it  is  to  be  jjaid 
or  performed ;  Locus,  ubi  contractus  ccle- 
bi-atus  est  ;  locus,  ubi  destinata  solutio  est ; 
and  therefore,  tliat  if  the  law  of  both 
places  is  not  violated,  in  respect  to  the 
rate  of  interest,  the  contract  for  interest 
will  be  valid.  In  support  of  their  deci- 
sion the  court  mainly  relied  upon  the 
doctrines  supposed  to  be  maintained  by 
certain  learned  jurists  of  continental 
Europe,  whose  language,  however,  does 
not  appear  to  me  to  justify  any  such 
interpretixtion  when  properly  consider- 
ed, and  is  perfectly  compatible  with  the 
ordinary  rule,  that  the  interest  must  be 


or  ought  to  be  according  to  the  law  of 
the  place  where  the  contract  is  to  be 
performed,  and  the  money  is  to  be  paid. 
It  may  not  be  without  use  to  review 
some  of  the  more  important  authorities 
thus  cited,  although  it  must  necessarily 
involve  the  repetition  of  some  which 
have  been  already  cited."  Confl.  of 
Laws,  §  298.  Then  after  twenty  pages 
of  the  examination  of  authorities,  he 
comes  to  the  conclusion  that  the  deci- 
sion of  the  court  of  Louisiana  is  not 
supported  by  tlie  reasoning  or  princi- 
ples of  foreign  jurists,  and  is  directly 
opposed  by  the  English  case  of  Robin- 
son V.  Bland,  2  Burr.  1077,  and  the 
American  case  of  Andrews  v.  Pond,  13 
Pet.  65.  Such  is  not  our  view  of  those 
cases.  The  first  is  wholly  different  in 
its  facts.  A  bill  of  exchange  was  sued, 
drawn  in  France  upon  the  drawer  in 
England ;  and  all  that  the  case  finds,  so 
far  as  the  present  (luestion  is  concerned, 
is,  that  Lord  Mansjield  says  :  —  "  The 
law  of  the  place"  (meaning  France,) 
"  can  never  be  the  rule,  where  the  trans- 
action is  entered  into  with  an  express 
view  to  the  law  of  another  country,  as 
the  rule  by  which  it  is  to  be  governed." 
The  case  of  Andrews  v.  Pond  only  de- 
cides that  if  the  interest  allowable  at 
the  place  of  payment  be  larger  than 
that  where  the  note  is  made  or  the  bill 
drawn,  the  parties  may  stipulate  for  the 
higher  interest.  No  doubt  of  this  ;  but 
the  case  does  not  say  that  if  the  interest 
where  the  note  is  made  be  the  highest, 
the  parties  may  not  stipulate  for  that  ; 
and  this  alone  is  the  question.  We 
consider  Depau  v.  Humphreys  as  fully 
sustained  by  Pecks  i'.  Mayo,  14  Verm. 
33,  and  Chapman  v.  Robertson,  6  Paige, 
G27.  The  former  was  an  action  of  as- 
sumpsit on  two  promissory  notes  given 
by  Horatio  Gates  &  Co.,  of  Montreal, 
to  the  defendants,  payalile  in  Albany, 
N.  Y.,  and  by  the  defendants  indorsed 
to  the  plaintilfs.  It  ajipcared  that  the 
notes  were  made  at  JMontreal,  where 
the  makers  resided,  and  that  the  in- 
dorsers and  the  plaintills  resided  in 
Vermont.  Tin;  lawful  rate  of  interest 
in  Montreal  was  six  per  cent.,  and  in 
New  York  seven  per  cent,  per  annum. 
Redjield,  J.,  in  delivering  the  opinion  of 
the  court,  after  an  examination  of  all 
the    authorities,    says  :  —  "  From    all 


CH.  II.] 


THE    LAW   OF   PLACE. 


97 


If  a  merchant  in   New  York  comes  to   Boston   to   buy 
goods,  and  there  receives  them,  and  gives  his  note  for  them, 


which  I  consider  the  following  rules 
in  regard  to  interest  on  contracts  mnde 
in  one  country,  to  be  executed  in  ano- 
ther, to  be  well  settled:  1.  If  a  con- 
tract be  entered  into  in  one  place  to  be 
performed  in  another,  and  the  rate  of 
interest  difter  in  the  two  countries,  the 
parties  may  stipulate  for  the  rate  of  in- 
terest of  either  country,  and  thus  by 
their  own  express  contract  determine 
with  reference  to  the  law  of  whicli  coun- 
try that  incident  of  the  contract  shall 
be  decided.  2.  If  the  contract  so  enter- 
ed into  stipulate  for  interest  generally, 
it  shall  be  the  rate  of  interest  of  the 
place  of  payment,  unless  it  appear  the 
parties  intended  to  contract  with  refer- 
ence to  the  law  of  the  other  place.  3.  If 
the  contract  be  so  entered  into  for  mo- 
ney, payable  at  a  place  on  a  day  certain, 
and  no  interest  be  stipulated,  and  pay- 
ment be  delayed,  interest,  by  way  of 
damages,  shall  be  allowed,  according  to 
the  lawof  the  place  of  payment,  where  the 
money  may  be  supposed  to  have  been 
required  by  the  creditor  for  use,  and 
where  he  might  be  supposed  to  have  bor- 
rowed money  to  supply  the  deficiency 
thus  occurring,  and  to  have  paid  the  rate 
of  interest  of  that  country."  Chapman  v. 
Robertson,  6  Paige,  627,  was  a  bill  in 
equity  to  foreclose  a  mortgage,  given 
by  the  defendant,  a  resident  of  New 
York,  on  lands  in  that  State,  to  the 
complainant,  who  resided  in  England, 
to  secure  the  payment  of  £800  sterling. 
The  money  was  borrowed  by  Robertson 
when  in  England,  upon  an  agreement 
for  interest  at  the  rate  of  seven  per  cent, 
per  annum,  payable  annually.  Accord- 
ing to  the  agreement,  Robertson  upon 
bis  return  to  this  country  executed  the 
bond  and  mortgage,  and  transmitted 
them  to  the  complainant,  who  then  de- 
posited the  £800  with  Robertson's  bank- 
ers in  London.  The  defendant  con- 
tended that  as  the  original  agreement 
for  the  loan  was  made  in  England,  and 
the  money  was  received  there,  the  con- 
tract for  the  payment  of  more  than  five 
per  cent.  })er  annum  rendered  the  bond 
and  mortgage  usurious  and  void.  Wal- 
worth, C,  after  disposing  of  a  prelimi- 
nary point  which  arose  in  the  case, 
said:  —  "The  other  point  in  this  case 
presents  a  very  nice  question  arising 
out  of  the  conflict  of  laws  ia  this  State 

VOL.  II.  9 


and  England  relative  to  the  legal  rate 
of  interest.  It  is  an  established  princi- 
ple that  the  construction  and  validity  of 
contracts  which  are  purely  personal  de- 
pend upon  the  laws  of  the  place  where 
the  contract  is  made,  unless  it  was  made 
in  reference  to  the  laws  of  some  other 
place  or  country,  where  such  contract, 
in  the  contemplation  of  the  parties 
thereto,  was  to  be  carried  into  effect  or 
performed.  2  Kent's  Com.  457  ;  Story, 
Confl.  Laws,  §  272.  On  the  other 
hand,  it  appears  to  be  equally  well  set- 
tled by  the  laws  of  every  state  or  coun- 
try, that  the  transfer  of  lands  or  other 
hereditable  property,  or  the  creation  of 
any  interest  in,  or  lien  or  incumbrance 
thereon,  must  be  made  according  to  the 
lex  situs,  or  the  local  law  of  the  place 
where  the  property  is  situated.  And  it 
has  been  decided  that  the  lex  loci  rei 
sitcB  must  also  be  resorted  to  for  the 
purpose  of  determining  what  is,  or  is 
not,  to  be  considered  as  real  or  heredi- 
table property,  so  as  to  have  locality 
within  the  intent  and  meaning  of  this 

latter  principle Upon  a 

full  examination  of  all  the  cases  to  be 
found  upon  the  subject,  either  in  this 
country  or  in  England,  none  of  which, 
however,  appear  to  have  decided  the 
precise  question  which  arises  in  this 
cause,  I  have  arrived  at  the  conclusion 
that  this  mortgage  executed  here,  and 
upon  property  in  this  State,  being  valid 
by  the  lex  situs,  which  is  also  the  law  of 
the  domicil  of  the  mortgagor,  it  is  the 
duty  of  this  court  to  give  full  effect  to 
the  security,  without  reference  to  the 
usury  laws  of  England,  which  neither 
party  intended  to  evade  or  violate  by 
the  execution  of  a  mortgage  upon  the 
lands  here.  If  no  rate  of  interest  was 
specified  in  the  contract,  it  might  per- 
haps be  necessary  to  inquire  where  the 
money  was  legally  payable  when  it  be- 
came due,  for  the  purpose  of  ascertain- 
ing what  interest  the  mortgagee  was 
entitled  to  receive.  Quince  v.  Callen- 
der,  1  Desaus.  160;  Scofield  et  al.  v. 
Day,  20  Johns.  102.  But  if  a  contract 
for  the  loan  of  money  is  made  here,  and 
upon  a  mortgage  of  lands  in  this  State, 
which  would  be  valid  if  the  money  was 
payable  to  the  creditor  here,  it  cannot 
be  a  violation  of  the  English  usury 
laws,  although  the  money  ia  made  pay- 


98 


THE   LAW   OF   CONTRACTS. 


[part  II. 


which  specifies  either  Boston  or  no  place  for  payment,  it  is 
a  Boston  transaction.  When  the  note  is  due,  it  may  be  de- 
manded of  the  maker  wherever  he  is,  but  wherever  demanded 
would  be  construed  by  the  law  of  Massachusetts.  If  the 
note  were  made  payable  in  New  York,  it  could  be  demanded 
nowhere  else,  and  would  be  construed  by  the  law  of  New 
York.  If  he  did  not  come  to  Boston,  but  sent  his  orders 
from  New  York,  and  the  goods  were  sent  to  him  from  Bos- 
ton, either  by  a  carrier  whom  he  pointed  out,  or  in  the 
usual  course  of  trade,  this  would  be  a  completion,  a  making, 
of  the  contract,  and  it  would  be  a  Boston  contract,  whether 
he  gave  no  note,  or  a  note  payable  in  Boston,  or  one  with- 
outNexpress  place  of  payment.  (/)  But  if,  as  before,  he  gave 
his  note  payable  in  New  York,  it  would  be  a  New  York 
note.     And  if,  by  the  terms  of  the  orders  or  the  bargain,  the 


able  to  the  creditor  in  that  country,  and 
at  a  rate  of  interest  which  is  greater 
than  is  allowed  by  the  laws  of  England. 
This  question  was  very  fully  and  ably 
examined  by  Judge  Martin,  in  the  case 
of  Depeau  v.  Humphreys,  in  the  Su- 
preme Court  of  Louisiana,  (20  Martin, 
I,)  and  that  court  came  to  the  conclu- 
sion, in  which  decision  I  fully  concur, 
that  in  a  note  given  at  New  Orleans 
upon  a  loan  of  money  made  there,  the 
creditor  might  stipulate  for  the  higliest 
legal  rate  of  conventional  interest  al- 
lowed by  the  laws  of  Louisiana,  although 
the  rate  of  interest  thus  agreed  to  be 
paid  was  higher  than  that  which  could 
be  taken,  upon  a  loan,  by  the  laws  of 
the  State  where  such  note  was  made 
payable."  In  Hosford  v.  Nichols,  1 
Paige,  220,  where  a  contract  for  the 
sale  of  land  situated  in  New  York  was 
made  between  two  citizens  of  New 
York,  one  of  whom  removed  to  Penn- 
sylvania, where  the  contract  was  after- 
wards executed,  by  giving  a  deed,  and 
taking  a  mortgage  of  tlie  premises  to 
secure  the  payment  of  the  purchase- 
money,  in  which  mortgage  the  New 
York  rate  of  interest  was  reserved, 
which  was  greater  than  that  of  Penn- 
sylvania, it  was  held  that  the  giving  the 
deed  and  taking  the  mortgage  was  only 
a  consummation  of  the  original  con- 
tract made  in  New  York,  and  that  the 
mortgage  was  not  void  for  usury.  It  is 
tmc   that  in  this   case   the  court   also 


say  :  —  "Again,  there  is  no  evidence  in 
this  case  to  show  that  the  bond  and 
mortgage  were  not  both  valid  by  the 
law  of  the  State  where  they  were  ori- 
ginally executed.  E.  Kane  testifies  that 
at  the  time  of  their  date,  and  for  some 
years  previous,  six  per  cent,  was  the  le- 
gal rate  of  interest  in  Pennsylvania.  But 
it  does  not  appear  that  any  law  existed 
in  that  State  which  prohibited  the  parties 
from  agreeing  upon  a  higher  rate  of  in- 
terest, or  declaring  securities  void  in 
which  a  higher  rate  of  interest  was  re- 
served. And  courts  of  this  State  can- 
not take  notice  of  the  laws  of  other 
States,  unless  they  are  proved  in  the 
same  manner  as  other  facts."  But 
there  is  little  doubt  that  the  decision 
would  have  been  the  same,  independ- 
ently of  this  last  ground.  See  farther 
upon  this  question,  Champant  ?;.  llane- 
lagh,  Prec.  in  Ch.  128;  Connor  v.  Bel- 
lamont.  2  Atk.  282 ;  Stapleton  v.  Con- 
way, 1  Ves.  427,  3  Atk.  727  ;  Phipps  v. 
Anglesea,  5  Vin.  Abr.  209,  pi.  8  :  1  Eq. 
Cas.  Abr.  ch.  36,  Tit.  Interest  Money, 
(E);  i:kins  v.  East  India  Co.  1  P. 
Wms.  39.'3;  Anonymous.  3  Bing.  193; 
Fergusson  v.  Fyff'e,  8  CI.  &  Fin.  121  ; 
Harvey  v.  Archbold,  Ry.  &  Mood.  184  ; 
Boyce  v.  Edwards,  4  Pet.  Ill;  Fan- 
ning r.  Conscqua,  17  Johns.  511;  Win- 
throp  r.  Carlctoii,  12  Mass.  4;  Fodcn  v. 
Sharp,  4  Johns.  183;  Dewar  i'.  Span,  3 
T.  R.  42.5. 
(/)  Whiston  V.  Stodder,  8  Mart.  95. 


ClI.  II.]  THE   LAW   OP   PLACE.  99 

property  in  the  goods  were  not  to  pass  to  the  purchaser  until 
their  arrival  in  New  York,  they  being  previously  at  the  risk  of 
the  seller,  and  then  a  note  was  given  by  the  buyer  in  New 
York,  this  would  be,  we  think,  a  New  York  transaction  and 
a  New  York  note,  unless  the  note  were  made  expressly  pay- 
able in  Boston.  Such  would  be  the  inferences  which  we 
should  draw  from  the  reasons  of  the  cases,  and  from  what 
seem  to  be  the  stronger  authorities ;  but  many  of  these  ques- 
tions are  not  yet  distinctly  determined  by  adjudication.  It 
is  quite  certain  that  the  Roman  civil  law  considered  the 
place  of  payment  or  performance  as  the  place  of  the  con- 
tract. And  this  law  has  much  title  to  respect  on  a  question 
of  this  kind,  both  as  the  basis  of  a  widely  extended  system 
of  law  now  in  force,  and  as  the  embodiment,  in  its  commer- 
cial law,  of  sound  sense  and  accurate  justice. 

It  is  to  be  noticed  that  the  payment  is  to  be  measured  or 
regulated  by  the  law  of  the  place  where  the  note  is  by  the 
terms  of  the  contract  to  be  performed,  and  not  by  that  where 
it  happens  to  be  performed.  A  note  made  in  Boston  may 
be  demanded  and  sued  in  England,  or  vice  versa;  because  a 
note  without  a  specified  place  of  payment  has  no  controlling 
place,  but  may  be  demanded  of  the  maker  wherever  he  is. 
But  such  a  note  would  still  be  a  Boston  note  or  an  Ensflish 
note,  according  to  the  place  of  its  signature.  In  fact,  all 
debts  are  payable  everywhere,  unless  there  be  some  special 
limitation  or  provision  in  respect  to  the  payment ;  the  rule 
being  that  debts,  as  such,  have  no  locus  or  situs,  but  accom- 
pany the  creditor  everywhere,  and  authorize  a  demand  upon 
the  debtor  everywhere.  ("•) 

ig)  Blancbard  u.  Russell,  13  Mass.  1 ;  nard  v.  Marshall,  8  Id.  194.  Seo  also 
Blake  v.  Williams,  6  Pick.  286  ;  Bray-    ante,  p.  83,  n.  (/). 


100  THE   LAW   OF   CONTRACTS.  [PART  II. 


SECTION  VI. 

OF  THE  LAW  OF  THE  FORUM  IN  RESPECT  TO  PROCESS  AND 
REMEDY. 

Every  state  holds  jurisdiction  over  all  persons  and  all 
things  within  its  dominion,  and  no  farther.  In  England  and 
America,  foreigners  may  avail  themselves  of  the  courts  for 
suits  or  defences  against  each  other,  in  like  manner  as  citi- 
zens may.  And  a  person  who  has  property  within  the  juris- 
diction of  an  English  or  American  court,  is  liable  to  the 
action  of  such  court,  though  he  himself  may  be  out  of  the 
jurisdiction,  provided  he  receives  such  notice  as  the  general 
law  of  the  state  or  the  rules  of  the  court  may  require.  (A) 

But  on  the  trial,  and  in  respect  to  all  questions  as  to  the 
forms,  or  methods,  or  conduct  of  process,  or  remedy,  the  law 
of  the  place  of  the  forum  is  applied,  (i)  A  familiar  in- 
stance of  this  is  an  action  on  an  instrument  which,  having  a 
scrawl  with  a  mere  locus  sigilli  upon  it,  was  made  in  a  State 
where  this  is  all  that  is  necessary  to  constitute  it  a  sealed 
instrument,  but  is  sued  in  a  State  where  a  seal  of  some  kind 
must  be  put  to  it.  This  instrument  must  not  only  be  de- 
clared on  as  a  simple  contract,  but  if  sued  there  it  is  only  as 
a  simple  contract  that  it  will  be  there  construed  in  respect 
to  all  the  rights  and  obligations  of  the  parties,  [j)      ' 

{^)  In  this  country  we  have,  very  gene-  C.  151,  159;  British  Linen  Co.  v. 
rally,  statutory  provisions  for  giving  ab-  Drumniond,  10  B.  &  Cr.  903;  Don  v. 
sent  defendants  due  notice;  and  there  are  Lippman,  5  CI.  &  Fin.  1  ;  Nash  v.  Tup- 
generally,  perhaps  universally,  rules  of  per,  1  Caines,  402  ;  Pearsall  v.  Dwight, 
court  and  of  practice,  for  the  same  pur-  2  Mass.  84 ;  Smith  v.  Spinolla,  2  Johns, 
pose.  And  the  principle  that  they  are  198;  Van  Reimsdyk  v.  Kane,  1  Gall, 
entitled  to  this  protection  is  universally  3T1  ;  Lodge  v.  Phelps,  1  Jolins.  Cas. 
recognized.  Fisher  v.  Lane,  3  Wils.  139,  2  Caines'  Cas.  in  Error,  321  ;  Peck 
302,  303;  The  Mary,  9  Cranch,  126,  v.  Ilozier,  14  Johns.  346;  Jones  v. 
144  ;  Bradstreet  v.  Neptune  Ins.  Co.  3  Hook,  2  liand.  303 ;  Wilcox  v.  Hunt, 
Sumn.  600.  13  Pet.  378  ;  Pickering  v.  Fisk,  6  Verm. 

(?)  This  rule  is  constantly  asserted,  102. 

not  only  by  all  civilians,  but  in  numc-  (_/)  Andrews  v.  Herriot,  4  Cow.  508, 

rous  cases  in  England  and  this  country,  overruling    Meredith    v.    Hinsdale,    2 

See  Robinson  v.  Bland,  2  Burr.  1077  ;  Caines,  3G2 ;  Bank  of  United  States  v. 

De  La  Vega  v.   Vianna,  1   B.  &  Ad.  Donnally,  8  Pet.  361  ;  Douglas  v.  Old- 

284;  Trimbey  v.  Vignier,  1  Bing.  N.  ham,  6  N.  II.  150;  Thrasher  v.  Ever- 


CH.  II.] 


THE    LAW    OF    PLACE. 


101 


Some  question  has  arisen  in  the  case  of  an  arrest  in  a  suit 
on  a  contract  made  where  the  arrest  would  not  have  been 
permitted  by  law ;  and  it  has  been  held  that  the  right  to 
arrest  would  be  that  only  which  was  given  by  the  law  of  the 
place  where  the  contract  was  made.  (A:)     It  seems,  however, 


hart,   3  Gill  &  Johns.   234  ;  Adam  i;. 
Kerr,  1  B.  &  P.  360. 

(k)  Such  at  least  has  been  understood 
to  be  the  decision  of  the  court  in  Mclan 
V.  Fitzjames,  1  B.  &  P.  138.  Wc  would 
submit,  however,  that  the  judgment  of 
the  court  in  that  case  proceeded  on  a 
different  ground.  It  was  an  action  on 
an  instrument  executed  in  France.  The 
defendant  having  been  held  to  bail,  a 
rule  was  obtained  calling  on  the  plain- 
tift'  to  show  cause  why  the  bail  bond 
should  not  be  given  up  to  be  cancelled, 
on  the  defendant's  entering  a  common 
appearance.  At  the  hearing  an  affida- 
vit of  a  French  counsellor  was  produced, 
stating  that,  by  the  law  of  France,  "  not 
only  the  person  of  the  contractor  or 
grantor  was  not  engaged  or  liable,  but 
it  was  not  even  permitted  to  the  party 
contracting  to  stipulate  that  his  body 
should  be  arrested  or  imprisoned  by 
reason  of  a  deed  of  that  sort."  After 
argument,  the  court  made  the  rule  ab- 
solute, Heath,  J.,  dissenting.  But  it 
seems  clear  from  the  opinions  delivered 
that  Eyre,  C.  J.,  and  Roolce,  J.,  who 
constituted  a  majority  of  the  court, 
went  upon  the  ground  that  the  instru- 
ment in  question  did  not,  according 
to  the  law  of  France,  contain  any 
personal  obligation,  and  did  not  au- 
thorize any  proceedings  in  personam, 
but  only  in  rem.  And  it  was  upon 
this  point  that  Heath,  J.,  differed  from 
them.  Eyre,  C.  J.,  said  :  —  "If  it 
appears  tliat  this  contract  creates  no 
personal  obligation,  and  that  it  could 
not  be  sued  as  such  by  the  laws  of 
France,  on  the  principle  of  preventing 
arrests  so  vexatious  as  to  be  an  abuse 
of  the  process  of  the  court,  there  seems 
to  be  fair  ground  on  which  the  court 
may  interpose  to  prevent  a  proceeding 
so  oppressive  as  a  personal  arrest  in  a 
foreign  country,  at  the  commencement 
of  a  suit,  in  a  case  which,  as  far  as  we 
can  judge  at  present,  authorizes  no  pro- 
ceeding against  the  person  in  the  coun- 
try in  which  the  transaction  passed.  If 
there  could  be  none  in  France,  in  my 
opinion  there  can  be  none  here.  I  can- 
9* 


not  conceive  that  what  is  no  personal 
obligation  in  the  country  in  which  it 
arises,  can  ever  be  raised  into  a  per- 
sonal obligation  by  the  laws  of  anotlier. 
If  it  be  a  personal  obligation  there,  it 
must  be  enforced  here  in  the  mode 
pointed  out  by  the  law  of  this  country ; 
but  what  the  nature  of  the  obligation  is 
must  be  determined  by  the  law  of  the 
country  where  it  was  entered  into,  and 
then  this  country  will  apply  its  own 
law  to  enforce  it."  Heath,  J.,  said  :  — 
"  This,  on  consideration,  does  seem  to 
me  to  be  a  personal  contract,  and  if  it 
be  so,  I  have  not  the  least  doubt  that 
the  defendant  should  be  held  to  bail. 
That  being  the  case,  we  all  agi-ee,  that 
in  construing  contracts,  we  must  be 
governed  by  the  laws  of  the  country 
in  which  they  are  made ;  for  all  con- 
tracts have  a  reference  to  such  laws. 
But  when  we  come  to  remedies  it  is 
another  thing ;  they  must  be  pursued 
by  the  means  which  the  law  points  out 
where  the  party  resides.  The  laws  of 
the  country  where  the  contract  was 
made  can  only  have  a  reference  to  the 
nature  of  the  contract,  not  to  the  mode 
of  enforcing  it.  Whoever  comes  into  a 
country  voluntarily  subjects  himself  to 
all  the  laws  of  that  country,  and  therein 
to  all  the  remedies  directed  by  those 
laws,  on  his  particular  engagements." 
Rooke,  J.  "I  entirely  agree  with  my 
Lord  Chief  Justice.  Though  the  con- 
tract, on  the  face  of  it,  may  seem  to 
bind  the  person  of  the  Duke  de  Fitz- 
james, by  the  words  "  binding  himself," 
&c.,  yet  being  made  abroad,  we  must 
consider  how  it  would  be  understood  in 
the  country  where  it  was  made.  Ac- 
cording to  the  affidavit  which  has  been 
produced  on  one  side,  and  not  contra- 
dicted by  the  other,  this  contract  is  con- 
sidered in  France  as  not  affecting  the 
person.  Then  what  docs  it  amount  to  ? 
It  is  a  contract  that  the  Duke's  estate 
shall  be  liable  to  answer  the  demand, 
but  not  his  jjcrson.  If  the  law  of 
France  has  said  that  the  person  shall 
not  be  liable  on  such  a  contract,  it  is 
the  same  as  if  the  law  of  France  had 


102 


THE   LAW    OF   CONTRACTS. 


[part  II. 


to  be  settled  otherwise,  arrest  being  of  the  remedy,  and  not 
of  the  rig^ht.  (/) 

So  too,  limitation  and  prescription  are  applied  only  accord- 
ing to  the  law  of  the  forum.  At  least,  it  seems  quite  well  esta- 
blished, that  a  foreigner,  bringing  an  action  on  a  debt  which  is 
barred  by  lapse  of  time  in  the  State  where  it  is  sued,  but  would 
not  be  at  home,  is  bound  by  the  law  of  the  forum,  and  can- 
not recover  payment,  {m)  The  general  reason  is,  that  all 
States  make  their  laws  of  peace  to  prevent  oppressive  and 
wasteful  litigation  within  their  jurisdiction,  and  have  a  right 
to  determine  for  all  who  resort  to  their  tribunals,  how  soon 
after  the  debt  is  due  the  creditor  must  claim  it  or  lose  it. 
But  the  question  which  might  arise,  if  the  action  would  be 
barred  if  brought  in  the  place  of  the  contract,  but  is  not 
barred  by  the  law  of  the  forum,  whether  the  shorter  limita- 
tion, being  that  by  the  law  of  the  place  of  contract,  shall 
now  prevail,  is  not  so  well  settled.  We  should  say,  how- 
ever, in  this  as  in  the  former  case,  the  law  of  the  forum  must 
govern,  on  the  general  ground  that  the  whole  question  of 


been  expressly  inserted  in  the  contract. 
If  it  had  been  specially  agreed  between 
the  parties  not  to  consider  the  Duke's 
person  liable,  and  under  those  circum- 
stances he  had  come  over  here,  there 
would  have  been  no  difference  between 
us  ;  for  if  it  were  agreed  there  that  the 
person  should  not  be  liable,  it  would 
not  be  liable  here.  Now  as  far  as  I  can 
understand  the  contract,  this  is  the  true 
meaning  of  it.  The  defendant  is  not 
bound  by  the  mere  words  of  the  contract, 
but  has  a  right  to  explain  by  affidavit 
how  it  would  be  considered  in  France. 
With  the  explanation  given  I  am  satis- 
fied, and  being  satisfied  with  it,  I  think 
the  defendant  should  be  permitted  to 
enter  a  common  appearance."  Such 
was  also  understood  to  be  the  turning 
point  of  the  case  by  Adair,  Sergeant, 
who  showed  cause  against  the  rule. 
•'This  rule,"  said  he,  "was  granted  in 
order  to  ascertain  whether  the  security 
in  question  was  that  kind  of  security 
which  imported  a  remedy  against  the 
person  of  the  defendant,  or  whether  it 
was  only  in  the  nature  of  a  mortgage 
on  his  estate.  If  this  be  a  mere  secur- 
ity, affecting  the  land  and  personal  i)ro- 
perty  only  of  tiic  defendant,  and  if  it  so 
appears  on  the  face  of  it,  the  court  will- 


attend  to  that  circumstance.  But  if  I 
can  show  that  it  is  a  personal  security 
affecting  the  person  and  following  it 
everywhere,  whatever  may  be  the  law 
of  France  as  to  the  form  of  proceeding, 
yet  when  the  party  is  found  in  this  or 
any  other  country,  he  may  be  proceed- 
ed against  according  to  the  rules  and 
practice  of  the  country  in  which  he  is 
resident." 

(/)  De  La  Vega  v.  Vianna,  1  B.  & 
Ad.  284;  Imlay  v.  Ellefsen,  2  E.ast, 
453 ;  Peck  v.  Hozier,  14  Johns.  .346  ; 
Hinkley  r.  Marian,  3  Mason,  88 ;  Ti- 
tus V.  Hobart,  5  Id.  378;  Smith  v.  Spi- 
nolla,  2  Johns.  198  ;  Woodbridge  v. 
Wright,  3  Conn.  523  ;  Atwater  v.  Town- 
send,  4  Conn.  47  ;  Smith  v.  Ilealy,  Id. 
49 ;  Whittemore  v.  Adams,  2  Cow.  626. 

(m)  British  Linen  Co.  v.  Drummond, 
10  B.  &  Cr.  903;  Van  Reimsdyk  v. 
Kane,  1  Gall.  371  ;  Le  Roy  v.  Crownin- 
shield,  2  Mason,  151  ;  Nash  v.  Tupper, 
1  Caincs,  402 ;  Bank  of  United  States 
V.  Donnally,  8  Pet.  361  ;  Kugglcs  v. 
Keeler,  3  Johns.  263;  Duplcix  v.  De 
Roven,  2  Verm.  540 ;  Decouche  v.  Sa- 
vetier,  3  Johns.  Ch.  190;  Lincoln  v. 
Battellc,  6  Wend.  475  ;  M'Elmoyle  v. 
Cohen,  13  Pet.  312. 


en.  II.]  THE    LAW    OF    PLACE.  103 

limitation  or  prescription  is  one  of  process  and  remedy,  and 
not  of  right  and  obligation,  (n) 


(ii)  Williams  ».  Jones,  13  East,  439  ; 
Medbury  v.  Hopkins,  3  Conn.  472; 
Van  Koimsdyk  v.  Kane,  1  Gall.  371  ; 
Le  Roy  v.  Crowninsliield,  2  JVIason, 
151 ;  Huber  v.  Steiner,  2  Bing.  N.  C. 
202  ;  Decouche  v.  Savetier,  3  Johns. 
Ch.  190  ;  Ruggles  v.  Kceler,  3  Johns. 
263  ;  Pearsall  v.  Dwight,  2  Mass.  84. 
Mr.  Justice  Story,  in  his  Conflict  of 
Laws,  ^  582,  takes  this  distinction. 
"Suppose  the  statutes  of  limitation  or 
prescription  of  a  particular  country  do 
not  only  extinguish  the  right  of  action, 
but  the  claim  or  title  itself,  ipso  facto, 
and  declare  it  a  nullity  after  the  lapse  of 
the  prescribed  period,  and  the  parties  are 
resident  within  the  jurisdiction  during 
the  whole  of  that  period,  so  that  it  has 
actually  and  fully  operated  upon  the 
case,  under  such  circumstances  the  ques- 
tion might  properly  arise  whether  such 
statutes  of  liinitarion  or  prescription 
may  not  afterwards  be  set  up  in  any 
other  country  to  which  the  parties  may 
remove,  by  way  of  extinguishment  or 
transfer  of  the  claim  or  title.  This  is 
a  point  which  does  not  seem  to  have 
received  as  much  consideration  in  the 
decisions  of  the  common  law  as  it 
■would  seem  to  require."  In  Don  v. 
Lippman,  5  CI.  &  Fin.  16,  Lord  Brough- 
am speaks  of  this  as  an  excellent  dis- 
tinction. And  it  is  approved  of  by  Tin- 
dal,  C.  J.,  in  Huber  v.  Steiner,  2  Bing. 
N.  C.  202.  But  in  Bulger  v.  Roche,  11 
Pick.  3G,  where  a  debt  was  contracted 
in  a  foreign  country,  between  subjects 
thereof,  who  remained  there  until  the 
debt  became  barred  by  the  law  of  limit- 
ations of  such  country,  it  was  held  that 
such  debt  could  not  be  recovered  in 
Massachusetts,  though  the  action  was 
brought  within  six  years  after  the  par- 
ties came  into  that  commonwealth. 
And  Shaw,  C.  J.,  said:  — "That  the 
law  of  limitation  of  a  foreign  country 
cannot  of  itself  be  pleaded  as  a  bar  to 
an  action  in  this  commonwealth  seems 
conceded,  and  is  indeed  too  well  settled 
by  authority  to  he  drawn  in  question. 
Byrne  v.  Crowninshield,  17  Mass.  55. 
The  authorities,  both  from  the  civil  and 
the  common  law,  concur  in  fixing  the 
rule,  that  the  nature,  validity,  and  con- 
struction of  contrncts  is  to  be  deter- 
nained  by  the  law  of  the  place  where  the 
contract  is  made,  and  that  all  remedies 


for  enforcing  such  contracts  are  regu- 
lated by  the  law  of  the  place  where 
such  remedies  are  pursued.  Whether 
a  law  of  prescription  or  statute  of  limit- 
ation, which  takes  away  every  legal 
mode  of  recovering  a  debt,  shall  be  con- 
sidered as  affecting  the  contract  like 
payment,  release,  or  judgment,  which 
in  effect  extinguish  the  contract,  or 
whether  they  are  to  be  considered  as 
affecting  the  remedy  only  by  determin- 
ing the  time  within  which  a  particular 
mode  of  enforcing  it  shall  be  pursued, 
were  it  an  open  question,  might  be  one 
of  some  difficulty.  It  was  ably  discuss- 
ed upon  general  principles  in  a  late 
case  (Le  Roy  v.  Crowninshield,  2  Ma- 
son's Rep.  151,)  before  the  Circuit 
Court,  in  which,  however,  it  was  fully 
conceded  by  the  learned  judge,  upon  a 
full  consideration  and  review  of  all  the 
authorities,  that  it  is  now  to  be  consi- 
dered a  settled  question.  A  doubt  was 
intimated  in  that  case,  whether,  if  the 
parties  had  remained  subjects  of  the 
foreign  country  until  the  term  of  limit- 
ation had  expired,  so  that  the  plaintiffs' 
remedy  would  have  been  extinguished 
there,  such  a  state  of  facts  would  not 
have  presented  a  stronger  case,  and  one 
of  more  serious  difficulty.  Such  was 
the  case  in  the  present  instance,  but  we 
think  it  sufficient  to  advert  to  a  well 
settled  rule  in  the  construction  of  the 
statute  of  limitations,  to  show  that  this 
circumstance  can  make  no  difference. 
The  rule  is  this,  that  where  the  statute 
has  begun  to  run,  it  will  continue  to 
run,  notwithstanding  the  intervention 
of  any  impediment,  which,  if  it  had  ex- 
isted when  the  cause  of  action  accrued, 
would  have  prevented  the  operation  of 
the  statute.  For  instance,  if  this  action, 
accrued  in  Nova  Scotia  in  1821,  and 
the  plaintiff  or  defendant  had  left  that 
country  in  1823  within  six  years,  in 
1828,  after  the  lapse  of  six  years,  the 
action  would  be  as  effectually  barred, 
and  the  remedy  extinguished  there,  as 
if  both  had  continued  to  reside  in  Hali- 
fax down  to  the  same  period.  So  that 
when  the  parties  met  here  in  1829,  so 
far  as  the  laws  of  that  country,  by  tak- 
ing away  all  legal  remedy,  could  affect 
it,  the  debt  was  extinguished,  and  that 
equally  whether  they  had  both  remain- 
ed under  the  jurisdiction  of  those  laws 


104 


THE   LAW   OP   CONTRACTS. 


[PAIIT  n. 


If  one  holds  personal  property  by  adverse  title,  long  enough 
to  acquire  ai  title  to  it  in  that  way  by  the  law  of  prescription 
of  the  |)lace  where  he  holds  it,  and  afterwards  removes  with 
the  property  to  a  place  where  the  prescription  necessary  to 
give  title  is  longer,  the  original  owner  cannot,  as  it  seems, 
maintain  his  title  in  this  new  place,  but  is  bound  by  the  pre- 
scription of  the  former  place,  (o) 


SECTION  VII. 
OF   FOREIGN   MARRIAGES. 

It  seems  to  be  generally  admitted,  and  is  certainly  a  doc- 
trine of  English  and  American  law,  that  a  marriage  which 
is  valid  in  the  place  where  it  is  contracted  is  valid  every- 
where, (p)     The  necessity  and  propriety  of  this  rule  are  so 


till  the  time  of  limitation  had  elapsed, 
or  whether  either  or  both  had  previously 
left  it.  The  autiioritics  referred  to, 
therefore,  must  be  held  applicable  to  a 
case  where  both  parties  were  subject  to 
the  jurisdiction  of  a  foreij^n  state  when 
the  bar  arising  from  its  statute  of  limit- 
ations attached.  The  same  conclusion 
results  from  tlie  reason  upon  which 
these  cases  proceed,  which  is,  that  sta- 
tutes of  limitation  aftect  only  the  time 
within  which  a  legal  remedy  must  be 
pursued,  and  do  not  affect  the  nature, 
validity,  or  construction  of  the  contract. 
This  reason,  whether  well  founded  or 
not,  a])plics  ctiually  to  cases  where  the 
term  of  limitation  has  elapsed,  when 
the  parties  leave  the  foreign  state,  as  to 
those  where  it  has  only  begun  to  run 
before  tlicy  have  left  the  state,  and 
elapses  afterwards." 

(o)  Ik'ckford  v.  Wade,  17  Ves.  87. 
And  sec  Slielby  v.  Guy,  11  Wheat.  361. 

(/;)  In  Engliind  this  may  be  consi- 
dered as  established  law,  at  least  since 
17C8,  when  the  case  of  Compton  v. 
Bearcroft  was  decided.  That  case  is 
thus  stated  in  Buller's  Nisi  Prius,  pp. 
ll.'J,  lU: — "The  appellant  and  re- 
spondent, I)Oth  Englisli  subjects,  and 
the    appellant   being   under    age,    ran 


away,  without  the  consent  of  her  guard- 
ian, and  were  married  in  Scotland,  and 
on  a  suit  brought  in  the  spiritual  court 
to  annul  the  marriage,  it  was  holden 
that  the  marriage  was  good."  An  ac- 
count of  this  case  will  be  found  also  in 
Middletou  r.  Janvcrin,  2  Hagg.  Consist. 
Kep.  44.'5.  The  case  of  Conway  i'.  Beaz- 
ley,  3  Ilagg.  639,  has  been  supposed  to 
hold  an  opposite  doctrine  ;  but  this  case 
only  decides  that  a  Scotch  divorce,  where 
the  husband  and  wife  were  domiciled 
in  England  at  the  time,  and  had  been 
married  in  England,  is  void  there.  See 
remarks  on  tliis  case  in  Bisliop's  valua- 
ble work  on  Marriage  and  Divorce, 
§§  127,  128.  The  same  rule  is  gene- 
rally held  in  this  country.  Thus  in 
Med  way  r.  Needham,  16  JIass.  157, 
where  parties  incapable  by  the  law  of 
Massachusetts  of  contracting  marriage 
with  each  other,  by  reason  of  one  of  tiicm 
being  a  white  i)erson  and  the  otlier  a  ne- 
gro, went,  for  tlie  express  purpose  of  eva- 
ding the  law,  into  Khode  Island,  where 
sucli  marriages  are  allowed,  and  were 
there  married,  and  immediately  return- 
ed, it  was  held  that  the  marriage,  being 
good  in  Ivliodc  Island,  was  good  in 
Massachusetts.  And  Parker,  C.  J., 
said :  —  "According  to  the  case  settled 


en.  ir.] 


THE    LAW    OF    PLACE. 


105 


obvious  and  so  stringent,  that  it  can  hardly  be  called  in  ques- 
tion.    Nevertheless,  it  must  be  subject  to  some  qualification. 


in  England  by  the  ecclesiastical  court, 
and  reco;^nized  by  the  courts  of,  com- 
mon law,  the  niarriaj^e  is  to  be  held  va- 
lid or  otherwise  accordin<j  to  the  laws 
of  the  place  where  it  is  contracted ;  al- 
thouf^h  the  parties  went  to  the  foreign 
country  with  an  intention  to  evade  the 
laws  of  their  own.  Tiiis  doctrine  is  re- 
pugnant to  t!ic  general  princii)les  of  law 
relating  to  contracts;  for  a  fraudulent 
evasion  of  the  laws  of  the  country 
where  the  parties  have  their  domicil 
could  not,  except  in  the  contract  of 
marriage,  be  protected  under  the  gene- 
ral principle.  Thus  parties  intending 
to  make  a  usurious  bargain  cannot  give 
validity  to  a  contract,  in  which  more 
than  tiie  lawful  interest  of  their  country 
is  secured,  by  passing  into  another  ter- 
ritory wliere  there  may  l)e  no  restriction 
of  interest,  or  wliere  it  is  established  at 
a  higher  rate,  and  there  executing  a 
contract  before  agreed  upon.  The  ex- 
ception in  favor  of  marriages  so  con- 
tracted must  be  founded  on  principles 
of  policy,  with  a  view  to  prevent  the 
disastrous  consequences  to  the  issue  of 
such  marriages,  as  well  as  to  avoid  the 
public  mischief  which  ■would  result 
from  the  loose  state  in  which  people  so 
situated  would  live."  So  in  Putnam  v. 
Putnam,  8  Pick.  433,  where  parties, 
both  resident  in  Massachusetts,  where 
one  of  them  having  been  divorced  for 
his  adultery,  was  therefore  prohil)ited 
under  a  general  statute  from  contract- 
ing marriage  while  his  late  wife  was 
living,  went,  in  order  to  evade  this  sta- 
tute, into  the  adjoining  State  of  Con- 
necticut, where  no  such  prohibition  ex- 
isted, and  wore  there  married,  and  im- 
mediately returned,  the  marriage  was 
held  to  be  good  in  Massachusetts.  Par- 
ker, C.  J.,  in  delivering  the  judgment 
of  the  court,  after  referring  to  the  case 
of  Medway  v.  Needham,  said :  —  "  Tiiis 
decision  covers  the  wliole  ground  of  the 
present  case,  and  to  decide  this  against 
the  petitioner  would  be  to  overrule  that 
decision.  The  court  were  aware  of  all 
the  objections  to  the  doctrine  maintain- 
ed in  that  case,  and  knew  it  to  be  vex- 
ata  qiurstio  among  civilians  ;  but  they 
adopted  the  rule  of  the  law  of  England 
on  this  subject,  on  the  same  ground 
it  was  adopted  there,  namely,  the  ex- 
treme danger  and  difficulty  of  vacating 


a  marriage,  which  by  the  laws  of  the 
country  where  it  was  entered  into  was 
valid.  Tiie  condition  of  parties  tlius 
situated,  the  effect  upon  their  innocent 
offspring,  and  the  outrage  to  public  mo- 
rals, were  considered  as  strong  and  de- 
cisive reasons  for  giving  place  to  the 
laws  of  tlie  foreign  country,  not  merely 
on  account  of  comity,  for  that  would 
not  be  offended  by  declaring  null  a  con- 
tract made  in  violation  of  the  laws  of 
the  state  in  which  the  parties  lived,  by 
evasion,  but  from  general  policy ;  nor 
will  the  same  pi'incii)le  be  necessarily 
applied  to  contracts  of  a  different  na- 
ture —  usurious,  gaming,  or  others  made 
unlawful  by  statute  or  common  law ; 
for  comity  will  not  require  that  the  sub- 
jects of  one  country  shall  be  allowed  to 
protect  themselves  in  the  violation  of 
its  laws,  by  assuming  obligations  under 
another  jurisdiction,  purposely  to  avoid 
the  effect  of  those  laws.  The  law  on 
this  subject  having  been  declared  by 
this  court  ten  years  ago,  in  the  case  be- 
fore cited,  it  is  binding  upon  us  and  the 
community  until  the  legislature  shall 
see  fit  to  alter  it.  If  it  shall  be  found 
inconvenient,  or  repugnant  to  sound 
principle,  it  may  be  expected  that  the 
legislature  will  explicitly  enact,  that 
marriages  contracted  within  another 
State,  which  if  entered  into  here  would 
be  void,  shall  have  no  force  within  this 
commonwealth.  But  it  is  a  subject 
whicii,  whenever  taken  into  considera- 
tion, will  be  found  to  require  the  exer- 
cise of  the  highest  wisdom."  This 
judgment  was  pronounced  in  1829. 
But  in  1835,  at  the  time  of  the  passage 
of  the  Revised  Statutes,  the  legislature 
interfered  by  enacting  as  follows :  — 
"  When  any  persons,  resident  in  this 
State,  shall  undertake  to  contract  a 
marriage,  contrary  to  the  preceding  pro- 
visions of  this  chapter,  and  shall,  in 
order  to  evade  those  ]irovisions,  and 
with  an  intention  of  returning  to  reside 
in  this  State,  go  into  another  State  or 
country,  and  there  have  their  marriage 
solemnized,  and  shall  afterwards  return 
and  reside  liere,  such  marriage  shall  be 
deemed  void  in  this  State."  Rev.  Stat, 
ch.  75,  sect.  6.  As  to  what  cases  this 
statute  embraces,  see  Sutton  i:  Warren, 
10  Mete.  451  :  Commonwealth  v.  Hart, 
4  Cush.  49.     The  case  of  Williams  v. 


106  THE   LAW   OF   CONTRACTS.  [PART  II. 

A  marriage  made  elsewhere  would  not  be  acknowledged  as 


Oates.  5  Iredell,  535,  contains  a  doc- 
trine materially  different  from  that  of 
the  Massachusetts  cases  already  cited. 
That  was  a  petition  hy  the  plaintiff,  as 
widow  of  the  defendant's  intestate,  for 
an  allowance  out  of  his  estate.  It  ap- 
peared tliat  the  plaintiff  had  formerly 
intermarried  with  one  Allen  in  North 
Carolina,  both  being  domiciled  there. 
Her  husband  afterwards  instituted  a 
suit  anainst  her  for  a  divorce  for  cause 
of  adultery  on  her  part,  in  which  there 
was  a  decree  divorcing  him  a  vinculo 
matrimonii.  Afterwards  the  plaintiff 
and  the  defendant's  intestate,  both  being 
citizens  of  North  Carolina,  and  domi- 
ciled there,  with  the  purpose  of  evading 
the  laws  of  that  State,  which  prohibited 
her  from  marrying  again,  went  into 
South  Carolina  and  there  intermarried, 
according  to  the  laws  of  that  State,  and 
immediately  returned  to  North  Caro- 
lina, and  continued  to  live  there  for 
several  years  as  husband  and  wife,  until 
the  death  of  the  intestate.  And  the 
Supreme  Court  of  North  Carolina  held 
this  latter  marriage  to  be  void.  Rvffin, 
C.  J.,  said: — "It  is  unquestionable 
that  if  this  second  marriage,  in  this 
case,  had  been  celebrated  in  this  State, 
it  would  have  subjected  the  plaintiff  to 
the  pains  of  bigamy,  and  would  have 
been  void.  The  case  stands,  as  to  her, 
precisely  as  if  there  never  had  been  a 
divorce ;  and,  pro  hac  vice,  the  first  mar- 
riage is  still  subsisting.  We  conceive 
the  second  marriage  acquires  no  force 
by  the  celebration  of  it  having  been  in 
South  Carolina.  We  have  been  at 
some  loss  to  determine  in  what  sense 
we  are  to  understand  the  phrase  in  the 
case,  that  the  parties  married  in  South 
Carolina,  "  according  to  the  laws  of 
that  State."  We  suppose  it  was  meant 
to  say  thereby  merely  that  the  ceremony 
was  duly  celebrated  with  the  formali- 
ties, and  by  the  persons,  and  with  the 
witnesses,  there  requisite  to  constitute  a 
marriage.  It  would  be  great  injustice 
to  our  sister  State  to  assume  that  by 
her  laws  her  own  citizens  can  marry  a 
second  time,  a  former  marriage  not  be- 
ing dissolved  by  death  or  divorce ;  or 
that  she  makes  it  lawful  for  citizens  of 
other  States,  who  have  married  at  home, 
and  by  their  domestic  laws  cannot  mar- 
ry a  second  time,  to  leave  their  own 
State  and  go  into  South  Carolina  ex- 


pressly to  evade  their  own  laws,  and,  with- 
out acquiring  a  domicil  in  South  Cai"o- 
lina,  contract  a  marriage  there.  We  can- 
not suppose  that  South  Carolina  allows 
of  polygamy,  either  by  her  own  citizens 
or  those  of  any  other  country.  There- 
fore we  might  cut  the  case  short  at  that 
point,  upon  the  presumption  that,  the 
contrary  not  expressly  appearing,  the 
law  of  South  Carolina  docs  not  tolerate 
this  marriage  more  than  our  own  law 
does.  Indeed,  we  believe  that  in  truth 
she  does  not  so  much,  as  we  have  been 
informed  that  she  grants  no  divorces. 
But  if  it  were  otherwise,  we  should 
still  hold  the  marriage  void.  We  do 
not  undertake  at  present  to  say  what 
might  be  the  effect  of  a  marriage  of  a 
person,  in  the  situation  of  this  plaintiff, 
contracted  in  another  State  in  which 
she   had   become   bond  _fide   domiciled. 

The  case  before  us  is  not 

one  of  a  domicil  out  of  North  Carolina, 
but  it  is  stated  that  the  parties  were  do- 
miciled here,  and  went  to  South  Caro- 
lina in  fraud  of  our  law.  Now  if  the 
law  of  South  Carolina  allow  of  such  a 
marriage,  and  although  it  be  true  that 
generally  marriages  are  to  be  judged  by 
the  lex  loci  contractus,  yet  every  country 
must  so  far  respect  its  own  laws,  and 
their  operation  on  its  own  citizens,  as 
not  to  allow  them  to  be  evaded  by  acts 
in  another  country  purposely  to  defraud 
them.  It  cannot  allow  such  acts  abroad, 
under  the  pretence  that  they  were  law- 
ful there,  to  defeat  its  own  laws  at 
home,  in  their  operation  upon  persons 
within  her  own  territory.  If  a  person 
contract  marriage  here,  and,  living  the 
other  party,  he  goes  to  Turkey,  and 
marries  half  a  dozen  wives,  contrary  to 
the  laws  of  this  State,  it  would  be  im- 
possible that  we  could  give  up  our 
whole  policy  regulating  niarriiiges  and 
inheritances,  and  allow  all  those  women 
and  children  to  come  in  here,  as  wives 
and  heirs,  with  the  only  true  wife  and 
heirs  according  to  our  law.  And  it 
would  be  yet  more  clear,  if  two  persons 
were  to  go  from  this  country  to  Tur- 
key, merely  for  the  sake  of  getting  mar- 
ried at  a  [)lace  in  which  ])olygamy  is  law- 
ful, and  then  coming  back  to  the  place 

where  it  is  not  lawful 

Certainly  every  country  should  be  dis- 
posed to  respect  the  laws  of  another 
country  ;  but  not  more  than   its  own. 


en.  il] 


THE    LAW    OP    PLACE. 


107 


valid  in  a  state  the  law  of  which  forbade  it  as  incestuous  ;  (q) 
although  a  question   might  be  made  whether  it  would   be 


That  ought  not  to  be  expected.  If  a 
Turk  with  two  wives  were  to  come 
here,  we  would  adniiiiistcr  to  them  the 
justice  due  to  the  rehitions  contracted 
by  thcin  at  liome.  But  an  American 
marries  at  liome,  where  phiraiity  of 
wives  is  excluded,  and  then,  contrary 
to  his  engagement  with  that  wife,  takes 
another,  where  a  phiraiity  of  wives  is 
tolerated,  and  the  tirst  wife  claims  the 
benefit  of  the  law  of  her  own  country 
from  the  courts  of  her  own  country, 
while  the  second  wife  claims  from  the 
same  courts  the  immunities  and  rights 
conceded  to  her  in  the  law  of  her  ori- 
ginal country.  These  claims  are  in- 
compatible, and  one  only  can  be  grant- 
ed ;  and  it  is  easy  to  see  that  the  obli- 
gations arising  out  of  the  first  contract 
are  to  be  sustained  by  the  country  in 
which  they  were  assumed ;  and  that  our 
courts  must  hold  the  second  marriage 
void  in  our  law,  which  denied  the  capa- 
city to  contract  it.  For  the  same  rea- 
son we  must  obey  the  positive  injunc- 
tion of  our  statute,  which  applies  to  this 
case." — In  Dickson  v.  Dickson,  1  Yerg. 
110,  which  was  a  petition  for  Dower,  it 
appeared  that  the  plaintiff  had  formerly 
been  married  in  Kentucky,  and  had 
been  there  divorced,  she  being  the  of- 
fending party.  She  afterwards  removed 
to  Tennessee  and  was  married  again, 
her  former  husband  living.  It  furiiier 
appeared,  that  by  the  law  of  Kentucky, 
a  divorce  obtained  in  that  State  does 
not  release  the  ofl'ending  party  from  the 
pains  and  penalties  of  bigamy,  if  he  or 
she  afterwards  marry.  Under  these 
circumstances  the  question  arose  whe- 
ther the  second  marriage  should  be  held 
valid  by  the  courts  of  Tennessee.  And 
it  was  held  that  it  should.  Catron,  J., 
said  :  —  ''  Mary  May  was  legally  di- 
vorced from  her  husband,  lienjamin 
May,  by  the  Union  Circuit  in  Ken- 
tucky ;  being  a  court  of  competent  ju- 
risdiction over  the  subject-matter  and 
the  parties  —  the  decree  dissolving  the 
marriage  is  conclusive  on  all  the  world. 
The  statute  of  Kentucky  provides  tiiat 
the  offending  party  (the  petitioner  in 
this  case)  shall  not  be  released  from  the 
marriage  contract,  but  shall  be  subject 
to  all  the  pains  and  penalties  of  biga- 
my. It  is  impossible,  in  the  nature  of 
things,   that  all  the  relations   of  wife 


shall  exist  when  she  has  no  husband  ; 
who,  as  soon  as  the  decree  di.ssolving 
the  marriage  was  pronounced,  was  an 
unmarried  and  single  man,  freed  from 
all  connections  and  relations  to  his  for- 
mer wife  ;  and  erjually  so  was  the  peti- 
tioner freed  from  all  marriage  ties  and 
relations  to  Benjamin  May,  in  reference 
to  whom  she  stood  like  unto  everv  man 
in  the  community.  Tiierefore,  Ae  has 
no  right  to  complain  of  the  second  mar- 
riage. Who  has?  Not  the  common- 
wealth of  Kentucky,  whose  penal  laws 
cannot  extend  beyond  her  own  territo- 
rial jurisdiction,  and  cannot  be  execu- 
ted or  noticed  in  this  State,  where  the 
second  marriage  took  place,  and  the 
violation  of  said  laws  was  effected.  Had 
Mary  May  married  a  second  time  in 
Kentucky,  such  second  marriage  would 
not  be  void  because  she  continued  the 
wife  of  Benjamin  May,  but  because 
such  second  marriage  in  that  State 
would  have  been  in  violation  of  a  highly 
penal  law  against  bigamy  ;  and  it  being 
a  well  settled  principle  of  law  that  any 
contract  which  violates  the  penal  laws 
of  the  country  where  made  shall  be 
void.  The  inquiry  with  this  court  is 
not,  however,  nor  cannot  be  whether 
the  laws  of  Kentucky  have  been  viola- 
ted by  this  second  marriage  —  but  have 
our  own  laws  been  violated  ?  The  act 
of  1820,  ch.  18,  against  bigamy,  de- 
clares it  felony  for  any  person  to  marry 
having  a  former  husband  or  wife  living. 
Mary  May  had  no  husband  living,  and 
is  not  guilty  of  bigamy  by  our  statute ; 
nor  has  she  violated  the  sanction  of  any 
penal  law  of  this  State."  See  farther, 
on  the  proposition  stated  in  the  text, 
Scrimshire  v.  Scrimshire,  2  Ilagg.  Con- 
sist. Rep.  395  ;  Herbert  r.  Herbert,  Id. 
263,  3  Phillimore,  58 ;  Swift  v.  Kelly, 
3  Knapp,  257  ;  Munro  ".  Saunders,  6 
Bligh,  468  ;  State  v.  Patterson.  2  Ired. 
346;  Fonnshill  v.  Murray,  1  Bland's 
Ch.  479  ;  Dumaresly  v.  Fi'-hly,  3  A.  K. 
Marsh.  3G8  ;  Wall  v.  Williamson,  8 
Ala.  48  ;  Lacon  v.  Higgins,  3  Stark. 
178  ;  Morgan  v.  McGhee,  5  Humph. 
13. 

((j)  Greenwood  v.  Curtis,  6  Mass. 
358,  378  ;  Sneed  v.  Ewing,  5  J.  J. 
Marsh.  460,  489  ;  Sutton  v.  Wancn,  10 
Met.  451.  And  see  Wightman  r.  Wight- 
man,  4  Johns.  Ch.  343. 


108 


THE   LAAV   OF   CONTKACTS. 


[part  II. 


held  incestuous,  so  far  as  to  avoid  the  marriage,  if  within  the 
degrees  prohibited  by  the  law  of  the  state  in  which  the  ques- 
tion arose,  or  only  if  it  were  between  kindred  who  are  too 
near  to  marry  by  the  law  of  the  civilized  world,  (r)  Thus, 
if  it  be  the  law  in  England  that  a  man  shall  not  marry  the 
sister  of  his  deceased  wife,  the  validity  of  such  a  marriage 
contracted  abroad  might  be  determined  in  England  by  a  re- 
ference to  the  question  of  domicil.  That  is,  an  Englishman 
going  abroad,  and  there  marrying  his  wife's  sister,  might,  on 
his  return,  be  held  not  to  have  legally  married  ;  while  two 
Americans  contracting  such  a  marriage  here,  where  it  is  cer- 
tainly lawful,  would  be  held  to  be  husband  and  wife  in  Eng- 
land. We  think,  however,  that  both  here  and  in  England 
the  law  of  the  place  of  the  marriage  would  prevail  in  such  a 
case  over  the  law  of  the  domicil.  [s)     But  if  a  married  man,  a 


(r)  See  Sutton  v.  Warren,  10  Met. 
45  i,  and  Bonham  v.  Badgley,  2  Oilman, 
622,  as  cited  ante,  vol.  1,  p.  563,  n.  (c). 

(s)  Sec  preceding  note.  In  Warren- 
der  V.  Warrender,  9  Bligh,  89,  112, 
Lord  Brougham  said,  ohiler  however:  — 
"  We  sliould  expect  that  the  Spanish  and 
Portu^^uese  courts  would  hold  an  Eng- 
lish marriage  avoidahle  between  uncle 
and  niece,  or  brother  and  sister-in-law, 
though  solemnized  under  papal  dispen- 
sation, because  it  would  clearly  be 
avoidahle  in  this  country.  But  I  strong- 
ly incline  to  think  that  our  courts 
would  refuse  to  sanction,  and  would 
avoid  by  sentence,  a  marriage  between 
those  relatives  contracted  in  the  Penin- 
sula, under  dispensation,  although  be- 
yond all  doubt  such  a  marriage  would 
there  be  valid  by  the  lex  loci  contractus, 
and  incapable  of  being  set  aside  by  any 
proceedings  in  that  country."  In  True 
V.  Kanney,  1  Post.  55,  Gilchrist,  C-  J., 
extends  the  exception  to  the  rule  that 
marriages  valid  where  celebrated  arc 
valid  everywhere  to  cases  in  which  the 
marriage  is  op]iosed  to  "  the  municipal 
institutions  of  the  country"  where  the 
rule  is  souglit  to  be  applied.  See  ante, 
vol.  1,  p.  565,  n.  {j).  But  we  think 
this  is  going  rather  too  far.  In  Green- 
wood V.  Curtis.  6  Mass.  358,  378,  the 
court  say :  —  ''If  a  foreign  state  allows 
of  marriages  incestuous  by  the  law  of 
nature,  as  between  parent  and  child, 
such  marriage  could  not  be  allowed  to 


have  any  validity  here.  But  marriages 
not  naturally  unlawful,  but  prohibited 
by  the  law  of  one  state  and  not  of  ano- 
ther, if  celebrated  where  they  are  not 
prohibited,  would  be  holdcn  valid  in  a 
state  where  they  are  not  allowed.  As 
in  this  state,  a  marriage  between  a  man 
and  his  deceased  wife's  sister  is  lawful, 
but  it  is  not  so  in  some  States.  Such  a 
marriage  celebrated  hei-e  would  be  held 
valid  in  any  other  State,  and  the  parties 
entitled  to  the  benefits  of  the  matrimo- 
nial contract."  And  Mr.  Justice  Story, 
after  quoting  this  language,  says  :  — 
'•  Indeed,  in  the  diversity  of  religious 
opinions  in  Christian  countries,  a  large 
space  must  be  allowed  for  interpretation, 
as  to  religious  duties,  rights,  and  solem- 
nities. In  the  Catholic  countries  of 
continental  Europe,  there  are  many 
jn'oliibitions  of  marriage,  whidi  are  con- 
nected with  religious  canons  and  esta- 
blishments, and  in  most  countries  there 
arc  some  positive  or  .customary  prohi- 
bitions, which  involve  peculiarities  of 
religious  opinion  or  of  conscientious 
doubt.  It  would  be  most  inconvenient 
to  hold  all  marriages  celel)ratcd  else- 
where void  whicli  are  not  in  scrupulous 
accordance  with  the  local  institutions 
of  a  particular  country."  Confl.  of 
Laws,  §  116.  It  is  to  he  remembered 
that  even  incestuous  marriages  are  not 
void  at  common  law,  but  only  voidable; 
and  voidable  only  during  the  lives  of 
both   parties  ;    for  after  the  death  of 


en.  II.]  THE    LAW    OF    PLACE.  109 

citizen  of  one  of  our  States,  journeyed  into  a  Mormon  terri- 
tory, and  there  married  again,  he  certainly  would  not  be 
held  on  his  return  to  be  the  lawful  husband  of  two  wives. 
And  it  may  be,  at  least,  conjectured,  that  if  a  Mormon  came 
into  Massachusetts  or  New  York  with  half  a  dozen  wives, 
he  would  not  be  held  there  to  be  the  lawful  husband  of  all 
of  them.  (/) 

The  fact  that  the  parties  went  abroad  for  the  purpose  of 
contracting  a  marriage  there,  which  would  be  illegal  at  home, 
ought,  it  might  seem,  to  destroy  the  validity  of  the  marriage 
at  home.  But  the  contrary  doctrine  appears  to  have  been 
held,  and  to  be  established  in  England  and  in  this  coun- 
try, (ii)  There  must,  however,  be  some  limit  to  this.  The 
common  case  of  Gretna  Green  marriages  only  shows  that 
persons  may  be  married  in  Scotland,  and  then  regarded  in 
England  as  husband  and  wife,  who  could  not  have  been 
married  in  that  way  in  England.  At  least  we  are  not  aware 
of  any  English  case  recognizing  the  validity  of  a  marriage 
contracted  abroad  between  English  subjects  who  could  not, 
in  any  way,  become  legally  husband  and  wife  by  any  mar- 
riage contracted  in  England.  In  Massachusetts  the  cases 
go  somewhat  farther,  but  expressly  except  those  foreign  mar- 
riages "which  would  tend  to  outrage  the  principles  and  feel- 
ings  of  all   civilized    nations."  [v)      It    may,    however,    be 


either,  they  are  valid,  as  to  tlie  legiti-  (0  ^f-  niight  be  a  different  question 

macy  of  the  children,  and  it  would  seem  whether  his  children  hy  all  his  wives, 

all   other   purposes.     See    1    Bl.    Corn,  who  were  equally   his   wives,   were  all 

434,   435,   and   2  Inst.  614.     See  also  legitimate.     In  Wall  v.  Williamson,  8 

Bonham  v.  Badgley,  2  Gilm.  622;  Sut-  Ala.  48,  the  court  say: — "A  parallel 

ton  r.  Warren,   10   Met.   453  ;  Kay  v.  case  to  a  Turkish  or  other  marriage  in 

Sherwood,  1  Curt.  193,  1<J9.     The  rule  an   infidel    country,   will    probably   be 

is,   that   for  civil   disabilities,   such   as  found  among  all  our  savage  tribes ;  but 

prior  marriage,  idiocy,  and  the  like,  the  can   it   be   possible   that    the   children 

marriage  nuiy  be  declared  either  before  must    be   illegitimate    if  born   of    the 

or  after   the   death   of  the  parties,   or  second  or  other  succeeding  wife  ?"  And 

either  of  them,  to  have  been  void  from  in  reference  to  the  case  ])ut  in  the  text, 

the  beginning;  but  for   canonical  disa-  /.'////j';;,  C.  J.,  says,  in  Williams  y.  Gates, 

bilities  only  during  the  lives  of  both;  5  Iredell,  535,  541,  cited  ante,  p.  107, 

and  canonical  disabilities  arc  said  to  be  n.  (/*) : — "If  a  Turk  with  two  wives 

consanguinity,  affinity,  and  certain  cor-  were  to  come  here,  we  would  administer 

poral  infirmities.     See  Elliott  v.  Gurr,  to  them  the  ju.stice  due  to  the  relations 

2  Phill.   16;  Gathings   v.    Williams,  5  contracted  by  them  at  home." 

Iredell,  487.     The  statute  of  0  Win.  4,  (;/)  Sec  anle,  p.  104,  n.  (/)). 

ch.  54,  makes  some  of  these  marriages  (c)  ]\Iedway  v.  Needham,    16    Mass. 

absolutely  void.  157. 

VOL.  n.                          10  • 


110  THE  LAW  OF  CONTRACTS.  [PART  11. 

remarked,  that  while  the  converse  of  this  rule  is  also  true, 
and  a  marriage  which  is  void  where  contracted  is  valid  no- 
where, {iv)  there  must  also  be  some  exceptions  to  this  rule ; 
as  if  two  Americans  intermarried  in  China,  where  the  mar- 
riage was  celebrated  in  presence  of  an  American  chaplain, 
according  to  the  American  forms.  If  such  a  marriage  were 
perfectly  void  in  China,  it  would  nevertheless  be  held  cer- 
tainly valid  here,  (x) 

It  is  also  the  general  rule,  both  in  England  and  in  this 
country,  that  the  incidents  of  marriage,  and  contracts  in  rela- 
tion to  marriage,  as  settlements  of  property  and  the  like,  are 
to  be  construed  by  the  law  of  the  place  where  these  were 
made;  for  any  different  construction  cannot  be  supposed  to 
carry  into  effect  the  intentions  and  agreements  of  the  parties, 
or  to  deal  with  them  justly.  (//)  This  being  the  reason  of  the 
rule,  it  cannot  apply  to  the  construction  of  settlements  and 
the  like,  where  the  parties  are  married  while  accidentally  or 
transiently  absent  from  their  homes,  without  actual  or  in- 
tended change  of  domicil,  and  make  their  settlements  or 
arrangements  there,  at  the  time  of  marriage;  for  in  such 
cases  the  law  of  the  domicil  should  govern,  and  the  marriage, 
although  actually  foreign,  should  be  regarded  as  construct- 
ively and  virtually  domestic.     For,    as   a  general  rule,  the 

(w)  M'CuUoch  V.   M'Cullocli,  Ferg;.  the   law   of  France?     No."    And   on 

Divorce  Cases,  257  ;  Dalrymple  v.  Dal-  p.  432,  he  says  :  —  "And  here  I  must 

rymple,  2  Hagg.  Consist.  Rep.  54  ;  Kent  oljserve,  that  I  do  not  mean  that  every 

r.  Burgess,  11   Sim.  361  ;  Scrinishire  v.  domicil  is  to  give  a  jurisdiction  to  a 

Scrimshire,  2  Ilagg.  Consist.  Rep.  395.  foreign  country,  so  that  the  laws  of  that 

(x)  Ruding  v.  Smith,  2  Hagg.  Con-  country  are  necessarily  to  obtain  and 
sist.  Rep.  371  ;  Kent  v.  Burgess,  11  attach  upon  a  marriage  solemnized 
Sim.  301  ;  The  King  v.  Brampton,  10  there;  for  what  would  become  of  our 
East,  282  ;  Newbury  v.  Brunswick,  2  factories  abroad,  in  Leghorn  or  else- 
Verm.  151.  In  Harford  i\  Morris,  2  where,  where  the  marriage  is  only  by 
Hagg.  Consist.  Rep.  430,  Sir  George  the  law  of  England,  and  might  be  void 
Ha>j  says:  —  "Will  anybody  say,  tliat  by  the  law  of  that  country;  nothing 
before  the  act,  a  marriage  solemnized  wdl  be  admitted  in  this  court  to  affect 
by  persons  going  over  to  Calais,  or  such  marriages  so  celebrated,  even 
happening  to  be  there,  was  void  in  this  where  the  parties  are  domiciled." 
country,  because  such  a  marriage  miglit  (y)  Fcaubcrt  v.  Turst,  Prcc.  in  Ch. 
be  void  by  tlie  laws  of  France,  as  per-  207,  1  Bro.  P.  C.  38,  Robertson's  App. 
haps  it  was,  if  solemnized  by  a  Rrotest-  Cas.  3  ;  Anstruther  v.  Adair,  2  My.  & 
ant  priest,  whom  they  do  not  acknow-  K.  513;  Frcemoult  i'.  Dedire,  1  P. 
ledge,  or  if  in  any  way  clandestine,  or  Wins.  429  ;  Dccouchc  v.  Savetier,  3 
without  consent;  and  that  therefore  it  Johns.  Ch.  190;  Crosby  v.  Berger,  3 
should  beset  aside  by  a  court  in  Eng-  Edw.  Ch.  538;  Dc  Barante  v.  Gott,  6 
land,  upon  account  of  its  being  void  by  Barb.  492. 


CH.  II.]  THE   LAW   OF   PLACE.  Ill 

rights  of  the  parties,  as  springing  from  the  relation  of  mar- 
riage, must  be  determined  by  the  place  where  they  then  sup- 
posed themselves,  and  intended  to  be,  domiciled,  (z) 

In  respect  to  the  capacity  of  the  wife  to  contract  with  a 
third  party,  we  are  inclined  to  hold  that  the  law  of  the  place 
of  the  contract  determines  this,  as  well  as  other  questions 
of  capacity,  at  least  in  respect  to  personal  contracts,  although 
in  the  absence  of  sufficiently  direct  adjudication,  and  in  the 
conflict  of  opinion  to  be  found  in  text-writers,  it  is  difficult 
to  ascertain  what  the  law  is  on  this  point.  And  it  must  de- 
pend much  on  the  circumstances.  If  an  American  wife,  for 
instance,  being  only  on  a  brief  visit  in  some  country  where  she 
may  contract,  does  so  on  some  accidental  occasion,  it  might 
be  more  doubtful  whether  the  contract,  though  valid  where 
made,  would  have  any  force  on  her  return  to  this  country. 
But  if  husband  and  wife  go  abroad,  and  visit  a  country  for 
business  purposes,  and  there  enter  into  business  contracts 
binding  both  by  the  law  of  that  place,  although  it  might  be 
difficult  to  enforce  the  contract  against  the  wife  in  America) 
while  the  husband  lived,  we  should  think  the  contract  would 
be  valid,  and  enforceable  here  after  her  husband's  death,  and 
perhaps  against  a  second  husband,  (a) 

There  is  one  peculiar  result  of  marriage,  which  seems  to 
be  an  exception.  In  some  places,  if  the  parents  of  a  child 
intermarry  after  his  birth,  this  marriage  legitimates  him.  In 
England  and  in  this  country  it  does  not.  It  has  been  held 
in  England  that  such  subsequent  marriage  in  Scotland, 
where  it  legitimates  the  child,  did  not  so  far  legitimate  him 

{z)  Le  Breton  v.  Nouchet,  3  Mart.  For  even  without  a  contract,  the  rights 

60;  Ford  v.  Ford,  14  Mart.  574;  Allen  of  the  husband  to  the  wife's  property 

V.  Allen,  6  Rob.  La.  104;  Doe  v.  Var-  are  determined  in  such  case  by  the  law 

dill,  5  B.  &  Cr.  438.    It  seems  that  par-  of  the  intended  and  actual  subsequent 

ties  cannot  by  a  contract  made  in  Lou-  domicil.     Le  Breton  v.  Miles,  8  Paige, 

isiana  provide  effectually  that  the  rights  261  ;  Ivnecland  v.  Ensley,  Meigs,  620  ; 

of  the  parties  shall  be  determined  by  Lyon  v.  Knott,  2  Am.  Law  Reg.  604. 

the  provisions  of  a  specified  foreign  law.  («)  In   the   absence   of  much  direct 

Bourcier  v.   Lanusse,   3    Martin,    581.  adjudication,  we  refer  the  reader  to  the 

But    though   the  contract  be  made  in  following  authorities,  as  bearing  more 

one  country,  and  it  refer  to  the  law  of  or  less  directly  upon  this  question.     Po- 

another,  it  will  be  valid  and  effectual  if  lydorc  v.   Prince,  Ware,  402  ;  Drue  v. 

both  parties  have  agreed  upon  making  Thorne,  Alcyn,  72  ;  Thompson  !'.  Keteh- 

that  other  country  their  place  of  resi-  am,  8  Johns.  189  ;  Garnier  t^.  Poydras,  13 

dence,  and    do    actually  settle    there.  Louis.  177  ;  Potter  v.  Brown,  5  East,  13L 


112 


THE  LAW   OF   CONTRACTS. 


PART  II. 


in  England  as  to  enable  him  to  take  by  inheritance  land 
situated  in  England,  (b)  The  rule  would  be  otherwise  as  to 
personal  property,  the  law  of  the  domicil  of  the  parents  de- 
termining the  legitimacy  as  to  that.  And  we  think  that 
such  a  marriage  in  Scotland,  supposing  parents  and  child 
afterwards  to  come  to  America  and  be  naturalized  here, 
would  be  held  here  to  make  the  child  an  heir,  as  well  as  to 
give  him  all  other  rights  of  legitimacy,  (c) 

The  place  of  marriage  does  not  determine  absolutely  as  to 
the  domicil  acquired  by  marriage.  Tt  would  be  obviously 
unreasonable  to  permit  the  domicil  of  the  parties  to  depend 
upon  the  mere  place  where  the  marriage  is  celebrated,  while 
the  parties  are  perhaps  only  in  transitu.  This  question  is 
therefore  settled  by  their  actual  domicil  at  the  time  ;  the  hus- 
band's domicil  is  determined  by  the  two  elements  of  actual 
residence  and  intent,  as  in  other  cases  ;  while  the  wife  ac- 
quires by  marriage  the  domicil  of  the  husband,  and  changes 
it  as  his  changes,  (d)     And  in  such  case  the  wife's  rights  in 


(6)  Doe  V.  Vardill,  5  B.  &  Cr.  438,  9 
Bligh,  32. 

(c)  Such  seems  very  certainly  to  be 
the  doctrine  of  the  greater  number  and 
most  authoritative  of  the  civilians.  See 
Story  on  Conil.  of  Laws,  §  93  a,  et  seg. 

{d)  See  ante,  p.  94,  n.  (jj).  But  the 
wife  may,  so  far  as  the  question  of  di- 
vorce is  concerned,  have  a  domicil  dis- 
tinct from  that  of  the  husband.  In 
Harteau  v.  Ilarteau,  14  Pick.  181,  Shaw, 
C.  J.,  after  considering  certain  ques- 
tions arising  in  the  case  which  have  no 
direct  bearing  upon  this  point,  says  :  — 
"  This  suggests  another  course  of  in- 
quiry, that  is,  how  far  the  maxim  is  ap- 
plicable to  this  case,  that  the  domicil  of 
the  wife  follows  that  of  the  husband. 
Can  this  maxim  be  true,  in  its  applica- 
tion to  this  subject,  where  the  wife 
claims  to  act,  and  by  law,  to  a  certain 
extent  and  in  certain  cases,  is  allowed 
to  act  adversely  to  her  husband?  It 
would  oust  the  court  of  its  jurisdiction, 
in  all  cases  where  the  husband  should 
change  his  domicil  to  another  State  be- 
fore the  suit  is  instituted.  It  is  in  the 
power  of  a  husband  to  change  and  fix 
his  domicil  at  his  will.  If  tlic  maxim 
could  apply,  a  man  might  go  from  this 
county  to  Providence,  take  a  house,  live 


in  open  adultery,  abandoning  his  wife 
altogether,  and  yet  she  could  not  libel  for 
a  divorce  in  this  State,  where,  till  such 
change  of  domicil,  they  had  always 
lived.  He  clearly  lives  in  Rhode  Island ; 
her  domicil,  according  to  the  maxim, 
follows  his  ;  she  therefore,  in  contem- 
plation of  law,  is  domiciled  there  too ; 
so  that  neither  of  the  parties  can  be  said 
to  live  in  this  commonwealth.  It  is 
probably  a  juster  view,  to  consider  that 
the  maxim  is  founded  upon  the  theore- 
tic identity  of  person  and  of  interest  be- 
tween husband  and  wife,  as  established 
by  law,  and  the  presumption,  that  from 
the  nature  of  that  relation  the  home  of 
the  one  is  that  of  the  other,  and  intend- 
ed to  promote,  strengthen,  and  secure 
their  interests  in  this  relation,  as  it  ordi- 
narily exists,  where  union  and  harmony 
prevail.  But  the  law  will  recognize  a 
wife  as  having  a  separate  existence  and 
separate  interests,  and  scjjaratc  rights, 
in  those  cases  where  the  express  object 
of  all  proceedings  is  to  show  tiiat  the 
relation  itself  ought  to  be  dissolved,  or 
so  modified  as  to  establish  separate  in- 
terests, and  especially  a  separate  do- 
micil and  home,  bed  and  board  being 
put,  a  part  for  the  whole,  as  expressive 
of  the  idea  of  home.     Otherwise,  the 


Cir.  II.]  THE    LAW    OF   PLACE.  113 

and  to  the  property  of  the  husband,  or  her  own,  would  be 
determined  by  the  law  of  that  domicil,  so  far  at  least  as  re- 
lates to  the  personal  property  of  both,  and  the  real  property 
of  the  husband.  If  tlie  wife  had  real  property  in  the  coun- 
try of  her  own  domicil,  hers  and  her  husband's  rights  in  re- 
spect to  it  might  now  be  governed  by  the  lex  loci  rei  sitce. 


SECTION  VIII. 
OF   FOREIGN   DIVORCES. 

The  relation  of  the  law  of  place  to  the  subject  of  divorce 
presents  questions  of  much  difficulty.  And  although  we 
have  many  cases  involving  some  of  these  questions,  decided 
after  very  full  consideration,  both  in  England  and  in  this 
country,  many  topics  remain,  in  relation  to  which  there  ex- 
ists at  present  much  uncertainty. 

The  law  of  divorce  differs  greatly  in  different  countries, 
because  marriage  itself  is  viewed  under  so  great  a  diversity 
of  aspect.  The  Catholic  Church  regards  it  as  a  sacrament, 
over  which  the  civil  law  and  civil  tribunals  have  no  power 
whatever,  and  which  can  only  be  dissolved  by  the  supreme 


parties  in  this  respect  would  stand  upon  acquire  a  new  jurisdiction  in  which  to 
very  unequal  grounds,  it  being  in  the  prosecute  her  claim  for  divorce,  though 
power  of  tlie  husband  to  change  his  do-  it  is  believed  that  the  preponderance 
micil  at  will,  but  not  in  that  of  the  of  American  authority,  as  well  as 
wife."  Mr.  Bishop,  in  his  work  on  weight  of  argument,  is  greatly  the  other 
Marriage  and  Divorce,  §  730,  after  way."  See  further  on  this  question, 
quoting  from  the  preceding  case,  says  :  Irby  v.  Wilson,  1  Dev.  &  Bat.  Eq.  568, 
"  And  the  doctrine  that,  for  purposes  of  .582;  Frary  v.  Frary,  10  N.  H.  61; 
divorce,  the  wife  may  have  a  domicil  Harding  y.Alden,  9  Greenl.  140;  Saw- 
separate  from  her  husband,  is  well  esta-  tell  v.  Sawtell,  17  Conn.  284;  Brett  v. 
Wished  in  the  American  tribunals,  al-  Brett,  5  Met.  233  ;  Tolen  v.  Tolen,  2 
though  some  of  the  authorities  would  Blackf.  407  ;  Jackson  v.  Jackson,  1 
seem  to  take  the  distinction,  (it  is  sub-  Johns.  425  ;  Magiiire  v.  Maguire,  7 
mitted  without  proper  foundation,)  that  Dana,  181  ;  Pawling  v.  Willson,  13 
a  wife  cannot  lose  her  domicil  by  the  Johns.  192,  208.  If  the  husband  and 
husband's  change  of  residence  after  the  wife  have  been  separated  by  a  judicial 
offence  is  committed,  yet  cannot  on  tiie  decree,  and  are  living  separate,  the  do- 
other  hand  acquire  a  new  one.  Indeed  micil  of  the  wife  is  independent  of  that 
it  has  been  distinctly  laid  down  that  the  of  the  husband.  Williams  v.  Dormer, 
wife  cannot,  by  a  removal  (if  her  habita-  9  Eng.  Law  &  Eq.  598. 
tion  after  the  commission  of  the  offence, 

10* 


114  THE   LAW   OF    CONTRACTS.  [PART  II, 

spiritual  power  of  the  church.  Protestants  deny  it  to  be  a 
sacrament.  They  regard  it  as  a  civil  contract,  of  a  religious 
character  it  may  be,  and  therefore  properly  associated  with 
religious  ceremonies ;  but  wholly  within  the  power  of  the 
civil  authority.  But  England,  which  was  Catholic  while  its 
common  law  was  in  course  of  formation,  had  no  means  pro- 
vided for  effecting  divorce  after  it  became  Protestant ;  and 
in  that  country  complete  divorce,  a  vinculo^  is  effected  only 
by  parliament.  In  nearly  all  other  Protestant  countries  ju- 
dicial tribunals  may  grant  divorces.  In  the  States  of  this 
Union,  divorce  is  granted  in  some  by  the  tribunals,  for  rea- 
sons which  are  defined  by  statute.  In  some  States  these 
causes  are  limited  to  adultery,  and  facts  of  equivalent  cha- 
racter, and  in  others  are  extremely  liberal,  not  to  say  lax. 
And  in  some  of  the  States  it  is  the  custom  for  the  legisla- 
tures to  grant  divorces  by  private  acts,  and  in  practice  this 
is  sometimes  done  for  very  feeble  reasons,  and  almost  with- 
out other  reason  than  the  request. 

The  question  must  therefore  be  one  of  much  difficulty, 
how  far  a  State  will  recognize  the  validity  of  a  foreign  di- 
vorce, granted,  perhaps,  for  causes  which  the  law  of  the  tri- 
bunal trying  the  question  would  hold  to  be  wholly  insuffi- 
cient. 

The  general  rule  is  certainly  this.  A  divorce  granted  in  a 
State  in  which  both  parties  had  their  actual  domicil,  and 
were  married,  is  valid  everywhere,  (e)  Then  it  may  be  said 
that,  generally,  every  State  recognizes  the  validity  of  a  di- 
vorce granted  where  both  parties  have  their  actual  domicil, 
if  granted  according  to  the  law  of  that  place.  It  has  been 
very  authoritatively  declared  to  be  the  law  of  England,  that 
the  tribunals  of  that  country  acknowledge  no  foreign  divorce 
of  an  English  marriage.  (/)     A  more  careful  consideration 

(e)  Story's  Con.  of  Laws,  §  201  ;  2  culo ;  he  rcturncil  to  England  and  mar- 
Kent's  Com.  108.  It  would  not  be  ricd  there,  his  first  wife  living ;  he  was 
easy  to  find  this  rule  established  by  dis-  indicted  for  bigamy,  convicted,  and  scn- 
tinct  adjudications,  for  the  reason  that  tenccd  to  transportation.  Lord  Broiujh- 
it  is  too  well  settled  to  lie  questioned,  am,  in  deciding  M'Cartliy  ?-.  Decaix,  2 

(/)  In  Lollcy's  case,  Ivuss.  &  Ry.  Cr.  Kuss.  &  My.  G14,  61'J,  comments  upon 

Cas.  237,  English  subjects  were   mar-  Lolley's  case,  and    upon  Lord  Eldoii's 

ried  in  England;  the  husband  went  to  remarks  upon    it,  and  says:  —  "I  find, 

Scotland ;  there  he  was  divorced  a  viii-  from  the  note  of  what  fell  from  Lord 


en.  II.] 


THE    LAW    OF    PLACE. 


115 


of  the  cases  would,  however,  lead  to  the  conclusion,  that  the 
established  rule  in   England  goes  no  farther,  than  that  an 


Eldon  on  the  present  appeal,  that  his 
lordship  lahored  under  considerable  mis- 
apprehension  as   to   the   facts   in  Lol- 
ley's  case  ;  he  is  represented  as  saying 
he  will  not  admit  that  it  is  the  settled 
law,  and  that  therefore  he  will  not  de- 
cide, whether  the  marriage  was  or  not 
prematurely  determined  by  the  Danish 
divorce.      His   words   are,    '  I  will  not 
without  other  assistance  take  upon  my- 
self to  do  so.'     Now,  if  it  has  not  validly 
and  by  the  highest  authorities  in  West- 
minster Hall  been  holden,  tliat  a  foreign 
divorce    cannot    dissolve    an    English 
marriage,    then   nothing   whatever   has 
been  established.    For  what  was  Lol- 
ley's  case  1     It  was  a  case  the  strongest 
possible  in  favor  of  the   doctrine  con- 
tended for.     It  was  not  a  question  of 
civil  right,  but  of  felony.     LoUey  had 
bond  fide,   and   in   a    confident    belief, 
founded  on  the  authority  of  the  Scotch 
lawyers,  that  the    Scotch   divorce  had 
effectually  dissolved  his  prior  English 
marriage,  intermarried  in  England,  liv- 
ing his  first  wife.     He  was  tried  at  Lan- 
caster for  bigamy,  and  found  guilty :  but 
the  point  was  reserved,  and  was  after- 
wards argued  before  all  the  most  learn- 
ed judges  of  the  day,  who  after  hearing 
the  case  fully  and  thoroughly  discussed, 
first  at  Westminster  Hall,  and  then  at 
Sergeant's  Inn,  gave  a  clear  and  unani- 
mous opinion,  that  no  divorce,  or  pro- 
ceeding in   the   nature   of  divorce,   in 
any  foreign  country,  Scotland  included, 
could  dissolve  a  marriage  contracted  in 
England  ;  and  they  sentenced  Lollcy  to 
seven   years'   transportation.     And    he 
was  accordingly  sent  to  the  hulks  for 
one  or  two  years  ;  though  in  mercy  the 
residue  of  his  sentence  was  ultimately 
remitted.     I  take  leave  to  say,  he  ought 
not  to  have  gone  to  the  hulks  at  all,  be- 
cause  he   had  acted  bona  fide,  though 
this  did  not  prevent  his  conviction  from 
being  legal.     But  he  was  sent  notwith- 
standing, as  if  to  show  clearly  that  the 
judges  were  confident  of  the  law  they 
had  laid  down ;  so  that  never  was  there 
a  greater  mistake  than  to  suppose  that 
the  remission  argued  the  least  doubt  on 
the  part  of  the  judges.     Even  if  the 
punishment  had  been  entirely  remitted, 
the  remission  would  have   been  on  the 
ground  that  there  had  been  no  criminal 
intent,  though  that  had  been  done  which 


the  law  declares  to  be  felony.     I  hold 
it  to  be  perfectly  clear,  therefore,  that 
Lolley's  case  stands  as  the  settled  law 
of   Westminster   Hall   at  this  day.     It 
has  been  uniformly   recognized   since; 
and  in  particular  it  was  repeatedly  made 
the  subject  of  discussion,  before  Lord 
Eldon  himself,  in   the   two    appeals  of 
Tovey  v.  Lindsay,  1   Dow,  117,  131,  in 
the  House  of  Lords,  when  I  furnished 
his   lordship    with   a    note   of  Lolley's 
case,  which  he  followed  in  disposing  of 
both  those  appeals,  so  far  as  it  affected 
them.     That  case  then  settled  that  no 
foreign  proceeding  in  the  nature  of  a 
divorce  in  an  ecclesiastical  court  could 
effectually   dissolve    an   English    mar- 
riage."    But  in   Conway  v.  Beazley,  3 
Hagg.  Ecc.  Eep.  639,  643,  Dr.  Lushimj- 
ton  says:  —  "Cases  have  been  cited  in 
which  it  is  alleged  that  a  final  decision 
has  been  pronounced  by  very  high  au- 
thority upon  the  operation  of  a  Scotch 
divorce  on  an  English  marriage,  —  that 
it  has  been  determined  that  a  marriage 
celebrated   in   England  cannot  be  dis- 
solved by  the  sentence  of  a  Scotch  tri- 
bunal, —  that  the  contract  remains  for- 
ever indissoluble.    The  authorities  prin- 
cipally relied  upon  for  establishing  that 
position  are  the  decisions  of  the  twelve 
judges  in  Lolley's  case,  and  the  decision 
of  the  present  Lord    Chancellor  on  a 
very  recent  occasion.     If  those  authori- 
ties sustained  to  its  full  extent  the  doc- 
trine  contended   for,    the  court  would 
feel  implicitly  bound  to  adopt  it ;  but  I 
must  consider  whether  in  Lolley's  case 
it  was  the  intention  of  those  very  learn- 
ed persons  to  decide  a  principle  of  uni- 
versal operation,  absolutely  and  without 
reference  to  circumstances,  or  whether 
they  must  not  almost  of  necessity  be 
presumed  to  have  confined  themselves 
to   the    particular    circumstances    that 
were   then   under   their   consideration. 
Lolley's  case  is  very  briefly  reported, 
none  of  the  authorities  cited  on  the  one 
side  or  on  the  other  are  referred  to,  nor 
are  the  opinions  of  the  learned  judges 
given  at  any  length ;  all  that  we  have 
is  the  decision.     It  is  much  to  be  re- 
gretted that  some  more  extended  report 
of  the  very  learned  arguments  which  I 
well  remember  were  urged   upon  that 
occasion,  and  the  multitude  of  authori- 
ties quoted,  have  not  been  communi- 


116 


THE   LAW   OF    CONTRACTS. 


[part  II. 


English  marriage  cannot  be  terminated  by  a  foreign  divorce, 
unless  both  parties  are  actually  domiciled  in  the  country 
where  the  divorce  takes  place.  This,  however,  is  much  far- 
ther than  all  courts  or  legislatures  go  ;  for  some  hold,  and 
practise  upon  the  rule,  that  if  the  parties,  or  indeed  if  only 
the  party  seeking  the  divorce,  is  within  the  jurisdiction  of 
the  court  by  a  present  domicil,  it  is  enough,  without  asking 
whether  the  party  came  there  merely  for  the  purpose  of  ob- 
taining the  divorce,  (g-) 


cated  to  tlie  profession  and  to  the  pub- 
lic. In  that  case  the  indictment  stated 
that  on  the  18th  of  July,  Lolicy  was 
married  at  Liveri)ool  to  Ann  Lcvaia, 
and  afterwards  to  Helen  Hunter,  his 
former  wife  Imng  then  living.  It  was 
proved  that  botli  marriages  were  duly 
solemnized  at  Liverpool,  that  the  first 
wife  was  alive  a  week  before  the  as- 
sizes, and  that  the  second  wife  agreed 
to  marry  the  prisoner  if  he  could  obtain 
a  divorce.  The  jury  did  not  find  that 
any  fraud  had  been  committed,  but 
there  does  not  appear  to  have  been  any 
discussion  upon  the  very  important 
question  of  domicil.  A  case  in  which 
all  the  parties  are  domiciled  in  Eng- 
land, and  resort  is  had  to  Scotland 
(with  wliich  neither  of  them  have  any 
connection)  for  no  otlier  purpose  than 
to  obtain  a  divorce  a  vinculo,  may  pos- 
sibly be  decided  on  principles  which 
would  not  altogether  apply  to  a  case 
differently  circumstanced  :  as  where, 
prior  to  the  cause  arising  on  account  of 
which  a  divorce  was  sought,  the  parties 
had  been  houd  fide  domiciled  in  Scot- 
land. Unless  I  am  satisfied  tliat  every 
view  of  this  ([uestion  had  been  taken, 
the  court  cannot,  from  the  case  referred 
to,  assume  it  to  have  been  established 
as  an  universal  rule,  that  a  marriage 
had  in  England,  and  originally  valid  by 
the  law  of  England,  cannot  under  any 
possible  circumstances  be  dissolved  by 
the  decree  of  a  foreign  court.  Before  I 
could  give  my  assent  to  such  a  doc- 
trine, (not  meaning  lo  deny  that  it  may 
be  true)  1  must  have  a  decision  after  ar- 
gument upon  such  a  case  as  I  will  now 
suppose,  viz  ,  a  marriage  in  England  — 
the  parties  resorting  to  a  foreign  country, 
becoming  actually  hondfide  domiciled  in 
that  country,  ami  then  separated  by  a 
sentence  of  divorce  pronounced  by  the 
competent  tribunal  of  that  country.     If 


a  case  of  that  description  had  occurred, 
and  had  received  the  decision  of  the 
twelve  judges,  or  the  other  high  authority 
to  which  allusion  has  been  made,  then 
indeed  it  might  have  set  this  important 
matter  at  rest,  but  I  am  not  aware  that 
that  point  has  ever  been  distinctly 
raised,  and  I  think  I  may  say  with  cer- 
tainty that  it  never  has  received  any 
express  decision." 

((/)  There  is  but  little  uniformity 
among  our  different  States,  either  as  to 
statutory  provisions  on  this  subject,  or 
the  principles  belonging  to  it  as  settled 
by  adjudication,  or  the  application  of 
these  principles  to  cases,  or  in  the  prac- 
tice and  usage  of  legislatures  in  relation 
to  legislative  divorces.  Mr.  Bishop, 
from  a  very  full  consideration  of  the 
American  cases,  deduces  the  following 
rules:  —  "1.  Tlie  tribunals  of  a  coun- 
try have  no  jurisdiction  over  a  cause  of 
divorce,  wherever  the  otlence  may  have 
occurred,  if  neither  of  the  parties  has  an 
actual  bond  fide  domicil  within  its  terri- 
tory. Nor  is  this  proposition  at  all  mo- 
dified by  the  fact  that  one  or  both  of 
them  may  be  temi)orarily  residing  with- 
in reach  of  the  process  of  the  court,  or 
that  the  defendant  appears  and  sul)mits 
to  the  suit.  This  is  the  firmly  establish- 
ed doctrine  both  in  England  and  Ame- 
rica." As  authorities  for  this  rule,  he 
cites  Conway  o.  Beazley,  3  Hagg.  Ecd. 
Kep.  631  i  Kex  v.  Lollcy,  Ku>s.  &  Ky. 
Cr.  Cas.  237;  Sugden  v.  Lollcy,  2  Ci. 
&  Fin.  567,  n. ;  Fellows  v.  Fellows,  8 
N.  II.  160;  Hanover  v.  Turner,  14 
Mass.  227;  Barber  v.  Koot,  10  Mass. 
260;  Pawling  r.  Bird,  13  .Johns.  102; 
Jackson  v.  Jackson,  1  Johns.  424 ; 
Bradshaw  j;.  Heath,  13  Wend.  407  ; 
Maguirc  v.  Maguire,  7  Dana,  181  ;  To- 
len  V.  Tolen,  2  Blackf.  407  ;  Freeman  v. 
Freeman.  3  West.  Law  Journ.  475  ; 
White  i;.  White,  5  N.  U.  476.— "2.  To 


en.  IT.]  THE    LAW    OF    PLACE.  117 

In  this  country,  the  law. on  this  subject  is  regulated  very 
generally  by  statutes  ;  and  these  differ  very  much,  and  arc  still 
subject  to  not  unfrequent  change.  In  the  absence  of  statu- 
tory provision,  we  should  incline  to  think,  that  the  courts 
would  generally  hold  a  divorce  which  was  valid  where  grant- 
ed, and  was  obtained  in  good  faith,  valid  everywhere.  Per- 
haps it  may  be  said  that  the  tendency  of  American  law  is 
towards  a  recognition  of  a  divorce  obtained  in  another  State, 
for  causes  which  would  be  sufficient  ground  for  divorce  in 
the  State  whose  tribunal  tries  the  question,  but  not  otherwise. 
For  the  courts  of  each  State  go  behind  a  cause  of  divorce 
in  another  State,  so  far  as  to  inquire  into  the  sufficiency  of 
the  cause ;  but  not  so  far  as  to  deny  the  existence  of  the 
cause,  if  ascertained  by  a  competent  tribunal,  on  a  regularly 
conducted  trial. 

•    SECTION  IX. 

FOREIGN   JUDGMENTS. 

The  principle  that  questions  which  have  been  distinctly 
settled  by  litigation  shall  not  be  again  litigated,  has  been  in 

entitle  the  court  to  take  jurisdiction,  doctrine  has  been  maintained  in  New 
however,  it  is  sufficient  that  one  of  the  Hampshire  and  Pennsylvania,  in  which 
parties  be  domiciled  in  the  country ;  it  States  it  is  held  that  the  tribunals  of 
is  not  necessary  that  both  should  be,  the  country  in  which  the  parties  were 
nor  that  the  citation,  when  the  domiciled  domiciled  when  the  delictum  occurred 
party  is  plaintift",  should  be  served  per-  have  alone  the  jurisdiction."  In  sup- 
sonally  upon  the  defendant,  if  such  per-  port  of  the  New  Hampshire  and  Penn- 
sonal  service  cannot  be  made."  Har-  sylvania  rule,  he  cites  Clark  v.  Clark,  8 
teau  V.  Harteau,  14  Pick.  181  ;  Harding  N.  H.  21  ;  Frary  v.  Frary,  10  Id.  61  ; 
V.  Alden,  9  Greenl.  140;  Mansfield  v.  Smith  y.  Smith,  12  Id.  80 ;  Greenlaw  v. 
Mclntyre,  10  Ohio,  27  ;  Tolen  v.  Tolen,  Greenlaw,  Id.  200 ;  Batcheldcr  v.  Bat- 
2  Blackf  407  ;  Hull  v.  Hull,  2  Strobh.  cheldcr,  14  Id.  380  ;  Dorscy  v.  Dorsey, 
Eq.  174.— "3.  The  place  where  the  of-  7  Watts,  349;  HoUister  v.  Ilollister,  6 
fence  was  committed,  whether  in  the  Pcnn.  St.  449.  —  "  5.  It  is  immaterial  to 
country  in  which  the  suit  is  brought,  or  this  question  of  jurisdiction,  in  what 
a  foreign  country,  is  quite  immaterial,  country,  or  under  what  system  of  di- 
This  is  the  universal  doctrine ;  it  is  the  vorce  laws,  the  marriage  was  contract- 
same  in  the  English,  Scotch,  and  Ame-  ed.  —  6.  The  view  we  have  taken  is  in 
rican  courts,  and  there  is  no  conflict  no  way  controlled  by  that  provision  in 
upon  the  point. —  4.  The  domicil  of  the  United  States  Constitution  which 
the  parties,  at  the  time  the  offence  was  prohibits  the  States  from  passing  laws 
committed,  is  of  no  consequence;  the  impairing  the^^obligation  of  contracts." 
jurisdiction  depends  upon  their  domicil  See  Bishop  on  Marriage  and  Divorce; 
at  the  time  the  proceeding  is  instituted,  §  721,  et  seq. 
and  judgment  rendered.     A   contrary 


118  TUE   LAW    OF   CONTRACTS.  [PART  II. 

many  cases  extended  to  foreign  judgments;  and  although 
the  whole  law  on  this  subject  is  not  perhaps  definitely  set- 
tled, (//)  it  may  be  considered  as  the  rule,  both  in  England 
and  in  this  country,  that  a  question  settled  abroad,  by  courts 
of  competent  jurisdiction,  between  actual  parties,  after  trial, 
will  not  be  opened  at  home,  (i)  It  will  be  presumed  that 
all  the  defences  the  losing  party  has  were  made,  and  were 
insufficient.  But  it  may  be  said  that  the  foreign  judgment 
will  not  be  entitled  to  this  respect,  when  it  appears  that  the 
foreign  law  or  foreign  process,  on  which  the  foreign  judg- 
ment rested,  conflict  with  reason  and  justice  ;  (j)  or  that  the 
foreign  court,  in  deciding  a  question  depending  more  or  less 
upon  the  law  of  that  other  country  in  which  the  foreign  judg- 
ment comes  under  consideration,  is  found  to  have  mistaken 
the  law  of  that  country.  (A;)  And  it  is  obviously  essential 
to  the  application  of  the  general  rule,  that  the  foreign  judg- 
ment be  definite,  exact,  final,  and  conclusive,  in  the  court 
and  country  in  which  it  was  rendered.  (/)  Nor  can  it 
be  necessary  to  say  that  if  the  foreign  judgment  can  be 
shown  to  have  been  obtained  by,  or  to  be  founded  upon, 
fraud,  it  can  have  no  force. 

On  the  general  ground  stated  above,  a  collection  by  a 
foreign  attachment  or  trustee  process,  in  a  foreign  country, 
is  a  bar.  (w)  So  the  pendency  of  a  foreign  attachment  or 
trustee  process  in  a  foreign  country  may  be  pleaded  in  abate- 


(A)  Smith   V.   Nicolls,   7    Scott,  147,  4G0,  20  Johns.  229  ;  M'Daniel  y.  Hughes, 

167.  3  East,  307  ;  Philips  v.  Hunter,  2  H.  Bl. 

(i)  Henderson  v.  Henderson,  6  Q.  B.  402.     In   Hull  v.  Bhikc,  13  Mass.  153, 

288;  Smith   v.   Lewis,   3   Johns.    157;  in  an  action  by  the  indorsee  of  a  pro- 

Einory  v.  Grenou^^h,  3  Dal.  3G9,  372,  n.  missory  note    apainst   the    maker,    the 

In  Burrows  v.  Jeniino,  Str.  733,  a  fo-  defendant  pleaded  in    bar  a  judj^rmcnt 

reif^n  decree  avoiding  the  acccjitance  of  rendered  against  him  by  a  county  court 

a  hill  of  exchange  was  held  good.  in  the  State  of  Georgia,  having  juris- 

{j)  Henderson  v.  Henderson,  G  Q.  B.  diction  of  the  cause,  as  the  garnishee  or 

288,  298  ;  Vailee  v.  Dumergue,  4  Exch.  trustee  of  the  promisee,  the  defendant 

290;  Keynolds  r   Fenton,  3  C.  B.  187;  having  in  the  said  cause   disclosed  the 

Cowan  I,'.    ]5raidwood,  12    Scott,  N.  U.  said    note;  the    action,    in    which  such 

138  ;  Ferguson  r.  Mahon,  11   Ad.  &  El.  judgment   was    rendered,    having    been 

179;  Alivon  v.  Furnival,  1  C.  M.  &  K.  "commenced   after   the   actual    indorse- 

277.  nicnt  of  the  note  to  the  present  plain- 

(/••)  Novclli  ('.  Bossi,  4  B.  &  Ad.  757.  tiff:  and  the  plea  was  hoiden  to  be  a 

(/)  Sadler  r.   Kobins,  1  Campb.  253;  good  bar.    Sec  also  the  reporter's  Icarn- 

Maule  V   Murray,  7  T.  R.  407.  ed  note  to  Andrews  v.  llerriot,  4  Cow. 

{m)  Holmes  v.  Ilemscn,  4  Johns.  Ch.  521. 


CII.  II.] 


THE    LAW    OF   PLACE. 


119 


ment.  (n)  But  the  pendency  of  a  suit  in  a  foreign  country, 
which  began  by  process  against  the  person,  has  not  the  same 
force  with  a  foreign  attachment ;  and  will  not  abate  a  suit 
at  home,  before  the  foreign  suit  is  carried  to  judgment,  (o) 
And  an  action  brought  in  this  country  directly  on  a  foreign 
judgment,  for  the  purpose  of  enforcing  it,  may  be  defeated 
by  evidence  going  to  set  that  judgment  aside.  Indeed,  ac- 
cording to  the  weight  of  authority,  it  is  no  more  than  primd 
facie  evidence,  when  an  action  is  brought  to  enforce  it;  but 
where  an  action  is  brought  for  a  cause  of  action  which  was 
litigated  abroad  between  the  same  parties,  then  the  foreign 
judgment  against  such  cause  of  action  is  a  bar  to  the  new 
action  brought  at  home,  [p) 


(n)  Embree  r.  Hanna,  5  Johns.  101. 
In  this  case  the  defendant  pleaded  a 
foreign  attachment  pending  in  Mary- 
land for  the  same  demand.  And  Kent, 
C.  J.,  said:  —  "If  the  defendant  would 
have  been  protected  under  a  recovery 
had  by  virtue  of  the  attachment,  and 
could  have  pleaded  such  recovery  in  bar, 
the  same  principle  will  support  a  plea 
in  abatement  of  an  attachment  pending, 
and  commenced  prior  to  the  present 
suit.  The  attachment  of  the  debt  in 
the  hands  of  the  defendant  fixed  it 
there,  in  favor  of  the  attaching  credit- 
ors ;  the  defendant  could  not  afterwards 
lawfully  pay  it  over  to  the  plaintiff. 
The  attaching  creditors  acquired  a  lien 
upon  tke  debt,  binding  upon  the  defend- 
ant ;  and  which  the  courts  of  all  other 
governments,  if  they  recognize  such 
proceedings  at  all,  cannot  fail  to  regard. 
Qui  prior  eat  tempore  potior  est  Jure.  In 
Brook  V.  Smith,  1  Salk.  280,  Lord  Ilolt 
held  that  a  foreign  attachment,  before 
writ  purcliased  in  tlie  suit,  was  plead- 
able in  abatement.  If  we  were  to  dis- 
allow a  plea  in  abatement  of  the  pend- 
ing attachment,  the  defendant  would  be 
left  without  protection,  and  be  oldiged 
to  pay  the  money  twice ;  for  we  may 
reasonably  presume,  that  if  the  priority 
of  the  attachment  in  JNIaryland  be  as- 
certained, tiic  courts  in  that  state  would 
not  suffer  that  proceeding  to  be  defeat- 
ed, by  the  subsequent  act  of  the  defend- 
ant going  abroad,  and  subjecting  him- 
self to  a  suit  and  recovery  here."  And 
see  Wheeler  v.  Kaymond,  8  Cow.  311. 
(o)  Bowne  u.  Joy,  9  Johns.  221.     In 


this  case  the  defendant  pleaded  the 
pendency  of  another  action,  between  the 
same  parties  and  for  the  same  cause,  in 
the  commonwealth  of  Massachusetts. 
And  upon  demurrer,  judgment  was 
given  for  the  plaintiff.  The  court  said  : 
"  The  exceptio  rei  judicattc  applies  only 
to  final  definitive  sentences  abroad, 
upon  the  merits  of  the  case.  Goix  v. 
Law,  1  Johns.  Cas.  34,5.  Nor  is  this 
analogous  to  the  case  of  the  pendency 
of  a  prior  foreign  attachment,  at  the  suit 
of  a  third  person,  for  here  the  defendant 
would  not  be  obliged  to  pay  the  money 
twice,  since  payment  at  least,  if  not  a 
recovery,  in  the  one  suit,  might  be 
pleaded  puis  dm'rein  continuance  to  the 
other  suit ;  and  if  tiie  two  suits  should 
even  proceed  pari  passu  to  judgment 
and  execution,  a  satisfaction  of  either 
judgment  might  be  shown  upon  audita 
querela,  or  otherwise,  in  discharge  of  the 
other."  In  Maule  v.  Murray.  7  T.  R. 
470,  a  foreign  judgment  was  disregard- 
ed, because  it  was  taken  subject  to  a 
case  wliich  had  not  then  been  decided, 
in  resjiect  to  the  amount. 

[p)  This  distinction  is  distinctly  stat- 
ed bv  Eyre,  C.  J.,  in  Philips  v.  Hunter, 
2  H."  Bl.  410.  "  It  is,"  said  he  '•  in  one 
way  only  that  the  sentence  or  judgment 
of  tlie  court  of  a  foreign  state  is  exami- 
nable in  our  courts,  and  that  is,  when 
the  party  who  claims  the  benefit  of  it 
applies  to  our  courts  to  enforce  it. 
When  it  is  thus  voluntarily  submitted 
to  our  jurisdiction,  we  treat  it,  not  as 
obligatory  to  the  extent  to  which  it 
would   be  obligatory,   perhaps,   in   the 


120 


THE   LAW   OF   CONTRACTS. 


[part  II. 


The  very  first  essential  to  this,  or  to  any  efficacy  of  a 
foreign  judgment,  is  that  the  court  by  which  it  is  pronounced 
has  unquestionable  jurisdiction   over  the  case,  (q)     And  if 


country  in  which  it  was  pronounced, 
nor  as  obligatory  to  the  extent  to  which, 
by  our  hiw,  sentences,  and  judgments 
are  oblipxtory,  not  as  conclusive,  but  as 
matter  in  pais,  as  consideration  prima 
facie  sufficient  to  raise  a  promise ;  we 
examine  it,  as  we  do  all  other  consider- 
ations of  promises,  and  for  that  purpose 
we  receive  evidence  of  what  tlie  law  of 
the  foreign  state  is,  and  whether  the 
judgment  is  warranted  by  that  law.  In 
all  other  cases,  we  give  entire  faith  and 
credit  to  the  sentences  of  foreign  courts, 
and  consider  them  as  conclusive  upon 
us."  Lord  Nottingham,  in  Cottington's 
case,  2  Swanst.  32G,  n.,  and  Lord  Hard- 
wicke,  in  Boucher  v.  Lawson,  Cas. 
Temp.  Hardw.  89,  seem  to  hold  that 
the  foreign  judgment  is  conclusive,  for 
all  purposes.  And  see  Roach  v.  Gar- 
van,  1  Ves.  157.  But  isj/re's  distinction 
is  maintained  by  Lord  Mansfield,  in 
Walker  r.  Witter,  Doug.  1  ;  and  by 
Buller,  J.,  in  Galbraith  v.  Neville,  Doug. 
6,  n.  (3) ;  and  in  Iloulditch  v.  Donegal, 
8  Bligh,  337,  Lord  Brouf/Jiam  gives  his 
reasons  at  length  for  hohling  a  foreign 
judgment  to  be  only  prima  facie  evi- 
dence. And  see  Herbert  v.  Cook,  Willes, 
36,  n.;  Hall  v.  Odbcr,  11  East,  118; 
Baylcy  v.  Edwards,  3  Swanst.  703.  But 
Lord  Kenyon,  in  Galbraith  v.  Neville, 
cited  above,  doubts  whether  a  foreign 
judgment  be  not  conclusive  in  English 
courts ;  and  Lord  EUenlmrough  at  least 
implies  a  similar  doubt  in  Tarleton  v. 
Tarleton,  4  M.  &  S.  21  ;  and  Sir  L. 
Shadwtll,  in  Martin  v.  Nicolls,  3  Sim. 
458,  rejected  this  distinction  altogether, 
and  therefore  allowed  a  demurrer  to  a 
bill  for  a  discovery  and  a  commission 
to  examine  witnesses  abroad  in  aid  of 
the  ])laintil{''s  defence  to  an  action 
brought  in  England  on  a  foreign  judg- 
ment. The  law  on  this  subject  cannot 
be  considered  as  settled  in  England  ; 
but  from  Smith  i'.  Nicolls,  5  Bing.  N. 
C.  208,  it  may  perhaps  be  inferred  that 
in  an  action  on  a  foreign  judgment,  the 
judgment  is  only  jirimd  J'acic  evidence. 
It  is  believed  tiiat  in  this  country  this 
distinction  has  been  regarded  in  prac- 
tice, but  the  reported  adjudications  do 
not  authorize  us  to  speak  of  it  as  esta- 
blished here.    Sec  Cummings  v.  Banks, 


2  Barb.  602,  where  the  question  is  dis- 
cussed by  Edmonds,  J.  In  Boston  In- 
dia K.  F.  V.  Hoit,  14  Verm.  92,  it  was 
held  that  debt  and  not  assumpsit  should 
be  brought  on  the  judgment  of  another 
State  ;  and  in  Noycs  v.  Butler,  6  Barb. 
613,  a  judgment  in  another  State  was 
held  conclusive  as  to  all  facts  lint  those 
which  went  to  show  the  jurisdiction  of 
the  court  rendering  the  judgment.  It 
must  be  remembered,  however,  that  the 
question  does  not  stand  in  this  country, 
as  between  the  courts  of  the  several 
States,  in  the  same  position  in  which  it 
stands  in  England,  as  between  the 
courts  of  that  country  and  those  of  fo- 
reign countries,  by  reason  of  the  inter- 
vention of  our  constitutional  provisions. 
Judgments  rendered  in  any  State  have 
rjenerally  the  same  force  and  effect  in  all 
other  States  as  in  that  in  which  they  are 
rendered.  Sec,  for  an  account  of  the 
decisions  on  this  sulyect,  Robinson  r. 
Prescott,  4  N.  H.  450;  1  Kent's  Com. 
260,  261.  See  also  Downer  v.  Shaw,  2 
Fost.  277. 

((])  Buchanan  v.  Rucker,  9  East,  192 ; 
Thurber  r.  Blackbourne,  1  N.  II.  242  ; 
BisscU  V.  Briggs,  9  Mass.  462  ;  Aldrich 
V.  Kinney,  4  Conn.  380 ;  Shumway  v. 
Stillman,  6  Wend.  447  :  Curtis  v.  Gibbs, 
1  Penning.  399 ;  Don  v.  Lippman,  5  CI. 
&  Fin.  120;  Rogers  v.  Coleman,  Har- 
din, 413;  Borden  v.  Fitch,  15  Johns. 
121  ;  Benton  v.  Burgot,  10  S.  &  R.  240. 
And  sec  the  reporter's  note  to  Andrews 
V.  Herriot,  4  Cow.  524.  From  IMills  v. 
Duryee,  7  Cranch,  481,  apparently  con- 
firmed by  Chief  Justice  Marshall,  in 
Hampton  v.  McConncl,  3  Wheat.  234, 
it  might  seem  to  be  the  established  law 
of  this  country,  tliat  a  judgment  reco- 
vered in  one  State  by  a  citizen  tliereof, 
against  a  citizen  of  another,  was  abso- 
lute and  final,  and  ])erfectly  exclusive 
of  all  inquiry  into  the  jurisdi('tion  of 
the  coin-t  which  rendered  tlic  judgment. 
But  this  question  was  very  fully  consi- 
dered in  Bis.scll  r.  Briggs,  9  Mass.  462  ; 
and  it  was  tlierc  hild  that  a  court  of 
another  state  must  have  had  jurisdic- 
tion of  the  parties,  as  well  as  of  the 
cause,  for  its  judgment  to  be  entitled  to 
the  full  faith  ami  credit  mentioned  in 
the    federal    constitution.     The    same 


CII.  II.] 


THE   LAW   OF   PLACE. 


121 


the  origin  of  this  jurisdiction  do  not  appear,  or  if  it  be  of  the 
ordinary  kind  admitted   among   civilized  nations,  and  esta- 


qucstion  was  again  fully  considered  in 
Hall  V.  Williams,  6  Pick.  232,  which  was 
debt  on  a  judgment  of  the  superior  court 
in  Georgia  ;  and  it  was  held  that  the  de- 
fendant, under  the  plea  of  nil  debit, 
might  show  that  t!ic  court  had  no  juris- 
diction over  his  person.  And  Parker, 
C.  J.,  in  delivering  the  judgment  of  the 
court,  said  :  —  "It  cannot  be  pretended, 
wc  tliink,  that  a  citizen  of  Massachu- 
setts, against  whom  a  judgment  may 
have  been  rendered  in  Illinois  or  Mis- 
souri, he  never  having  been  within  a 
thousand  miles  of  those  States,  should 
be  compelled  by  our  courts  to  execute 
that  judgment,  it  not  appearing  by  the 
record  that  he  received  any  manner  of 
notice  that  any  suit  was  pending  there 
against  him,  and  being  ready  to  show 
that  he  never  had  any  dealings  with  the 
party  who  has  obtained  the  judgment ; 
and  yet  this  must  be  the  consequence, 
if  the  doctrine  contended  for  bj'  some  is 
carried  to  its  full  length,  viz.,  that  the 
record  of  a  judgment  is  to  have  exactly 
the  same  effect  here  as  it  would  have  in 
Illinois  or  Missouri ;  for  in  those  States, 
if  the  process  has  been  served  according 
to  their  laws,  which  may  be  in  a  man- 
ner quite  consistent  with  an  utter  igno- 
rance of  the  suit  by  the  party  without 
the  State,  the  judgment  would  be  bind- 
ing there  until  reversed  by  some  pro- 
ceedings recognized  by  their  laws.  If 
it  be  said  that  a  party  thus  aggrieved 
may  obtain  redress  by  writ  of  error  or  a 
new  trial,  in  the  State  where  the  judg- 
ment was  rendered,  it  is  a  sufficient  an- 
swer, that  never  having  Ijeen  within 
their  jurisdiction,  or  amenable  to  their 
laws,  he  shall  not  be  compelled  to  go 
from  home  to  a  distant  State,  to  protect 
himself  from  a  judgment  which  never, 
according  to  universal  principles  of  jus- 
tice, had  any  legal  operation  against 
him.  The  laws  of  a  State  do  not  ope- 
rate, except  upon  its  own  citizens,  ex- 
tra territorium ;  nor  does  a  decree  or 
judgment  of  its  judicial  tribunals,  ex- 
cept so  far  as  is  allowed  by  comity,  or 
required  by  the  constitution  of  the  Uni- 
ted States  ;  and  neither  of  these  can  be 
held  to  sanction  so  unjust  a  principle. 
If  the  States  were  merely  foreign  to 
each  other,  we  have  seen  that  a  judg- 
ment in  one  would  not  be  received  in 
another  as  a  record,  but  merely  as  evi- 

VOL.  II.  11 


dence  of  debt,  controvertible  by  the 
party  sued  upon  it.  By  the  constitu- 
tion, such  a  judgment  is  to  have  the 
same  effect  it  would  have  in  the  State 
where  it  was  rendered,  that  is,  it  is  to 
conclude  as  to  every  tiling  over  which 
the  court  which  rendered  it  had  juris- 
diction. If  the  property  of  a  citizen  of 
anotlicr  State,  within  its  lawful  juris- 
diction, is  condemned  by  lawful  process 
there,  the  decree  is  final  and  conclusive. 
If  the  citizen  himself  is  there,  and  served 
with  process,  he  is  bound  to  appear  and 
make  his  defence,  or  submit  to  the  con- 
sequences ;  but  if  never  there,  there  is 
no  jurisdiction  over  his  person,  and  a 
judgment  cannot  follow  him  beyond  the 
territories  of  the  State,  and  if  it  does  he 
may  treat  it  as  a  nullity,  and  the  courts 
here  will  so  treat  it,  when  it  is  made  to 
ajjpear  in  a  legal  way  that  he  was  never 
a  proper  subject  of  the  adjudication. 
These  principles  were  settled  in  a  most 
lucid  and  satisfactory  course  of  reason- 
ing by  Cliief  Justice  Parsons,  in  the 
opinion  of  the  court  delivered  by  him 
in  the  case  of  Bissell  v.  Briggs,  9  Mass. 
462.  This  exposition  of  the  constitu- 
tional provision  respecting  the  records 
and  judicial  proceedings,  authenticated 
as  the  act  of  Congress  requires,  takes  a 
middle  ground  between  the  doctrine  as 
held  by  the  court  of  this  State,' in  the 
case  of  Bartlett  r.  Knight,  1  Mass.  401, 
and  by  the  court  of  New  York  in  the 
case  of  Hitchcock  et  al.  v.  Aicken,  1 
Gaines's  Kep.  460,  in  both  of  which  it 
was  held  that  the  constitution  and  act 
of  Gongress  had  produced  no  other 
effect  than  to  establish  definitively  the 
mode  of  authentication,  leaving  in  other 
respects  such  judgments  entirely  upon 
the  footing  of  foreign  judgments,  ac- 
cording to  the  principles  of  the  common 
law.  But  in  the  case  of  Bissell  v. 
Briggs,  the  principle  settled  is  that  by 
virtue  of  the  provision  of  the  constitu- 
tion, and  the  act  of  legislation  under  it, 
a  judgment  of  another  State  is  render- 
ed in  all  respects  like  domestic  judg- 
ments, when  the  court  where  it  was  re- 
covered had  jurisdiction  over  the  sub- 
ject acted  upon  and  the  person  against 
whom  it  was  rendered,  leaving  oj>en  for 
inquiry  in  the  court  where  it  was  sought 
to  be  enforced  the  question  of  jurisdic- 
tion, and  taking  the  obvious  distinction 


122 


THE   LAW   OF   CONTRACTS. 


[PAllT  II. 


blished  in  an  authentic  manner,  it  will  be  presumed  to  be 
legitimate  ;  if,  however,  it  be  of  unusual  origin  or  character, 


between  the  effect  of  the  judgment  upon 
property  witliin  the  territory,  and  the 
person  who  was  witliout  it.  It  was 
thought  that  tliis  was  carrying  the  sanc- 
tity of  judgments  of  other  Slates  as  far 
as  was  consistent  with  the  safety  of  the 
citizen  wlio  was  not  amenable  to  tlieir 
laws,  and  as  far  as  is  required  by  the 
spirit  or  letter  of  the  constitution  of  the 
United  States.  The  doctrine  thus  esta- 
blished here  has  been  apj)rovcd  and 
adopted  by  tlie  courts  of  the  great  States 
of  Tennsylvaniaand  New  York,  in  both 
of  which"  before,  it  had  been  held,  that 
the  judgments  of  the  several  States 
were  to  be  treated  as  foreign  judg- 
ments  The  principle 

upon  wliich  this  exception  is  made  to 
the  conclusiveness  in  every  particular  of 
the  judgments  of  otlier  States,  is  well 
expressed  by  Mr.  Justice  Johnson,  of  the 
Supreme  Court  of  the  United  States, 
when  dissenting  from  the  decision  of 
the  court  in  tlic  case  of  Mills  v.  Duryee. 
He  says  it  is  an  eternal  principle  of  jus- 
tice, 'that  jurisdiction  cannot  be  justly 
exercised  by  a  State  over  property  not 
within  the  reach  of  its  process,  or  over 
persons  not  owing  tlicm  allegiance,  or 
not  sut)jccted  to  their  jurisdiction  by 
being  found  within  their  limits.'  In- 
deed, so  palpable  is  this  principle,  that 
no  doubt  could  exist  in  the  mind  of  any 
lawyer  upon  the  subject,  but  for  the 
construction  supposed  to  be  given  to 
the  constitution  of  tlie  United  States, 
and  the  act  of  Congress  following  it,  in 
the  case  of.  Mills  v.  Duryee,  7  Cranch, 
481,  and  re-sanctioned  in  the  case  of 
Hampton  v.  McConnel,  3  Wheat.  2-34, 
in  the  Ijrief  opinion  delivered  by  Chief 
Justice  Marshall.  This  construction, 
when  first  referred  to  in  this  court  in 
the  case  of  the  Commonwealth  v.  Green, 
was  supposed  to  have  put  an  end  to  all 
questions  on  this  subject,  and  to  liave 
established,  as  the  law  of  the  land,  that 
a  judgment  recovered  in  one  State  by 
a  citizen  thereof  against  a  citizen  of 
another,  was  absolute  and  incontrovert- 
ible, and  would  admit  of  no  inquiry, 
even  as  to  tlie  jurisdiction  of  the  court 
which  rendered  it.  This  court  yielded 
a  i)aiiiful  deference  to  the  decision, 
without  that  close  examination  it  would 
have  received  if  presented  to  them  other- 
wise than  incidentally,  and  if  its  bear- 


ing had  been  of  importance  in  the  case 
then  before  the  court ;  but  the  notice 
taken  of  the  case  was  merely  the  ex- 
pression of  an  opinion  arf/ucndo,  and 
not  a  judicial  determination  of  the  ques- 
tion. And  as  a  further  reason  for  not 
receiving  the  doctrine  imj)licitly  as  au- 
thority, it  may  be  remarked  that  the 
case  to  which  it  was  applied  was  one 
clearly  within  the  jurisdiction  of  the 
court  which  decided  it,  so  that  the  point 
now  raised  was  not  brought  into  ([ues- 

tion The  case  of  ISIills  i". 

Duryee  has,  as  its  importance  merited, 
undergone  a  revision  in  almost  every 
State  court  in  the  Union  of  whose  deci- 
sions we  have  any  printed  account,  and 
the  opinion  has  been  unanimous,  with- 
out the  dissenting  voice,  so  far  as  we 
can  learn,  of  a  single  judge,  that  that 
case,  however  unqualified  it  may  appear 
in  the  report,  does  not  warrant  the  con- 
clusion, that  judgments  of  State  courts 
are  in  all  respects  the  same,  when  car- 
ried into  another  State  to  be  enforced, 
as  they  are  in  the  State  wherein  they 
are  rendered,  but  that  in  all  instances 
the  jurisdiction  of  the  court  rendering 
the  judgment  may  be  inquired  into.  In 
truth  all  of  them  sanctioning  the  prin- 
ciples, and  some  of  them  by  express 
reference,  which  were  asserted  by  this 
court  in  the  ease  of  Bissell  v.  Briggs  as 
the  only  just  exposition  of  the  provision 
in  the  constitution  of  the  United  States 
in   relation  to  the  records  and  judicial 

proceedings  of  States 

With  such  a  cloud  of  witnesses  in  fa- 
vor of  the  construction  given  to  the 
clause  of  the  constitution  which  is  in 
question,  bj'  this  court  in  the  case  of 
Bissell  V.  Briggs,  we  may  well  rest 
upon  that  as  the  true  construction,  if  it 
is  not  most  clearly  and  explicitly  over- 
ruled by  the  only  tribunal  wiiose  author- 
ity ought  to  be  submitted  to,  the  Su- 
preme Court  of  the  United  States.  But 
notwithstanding  all  these  decisions,  ma- 
ny of  wliich  are  subsequent  in  point  of 
time  to  the  case  of  Mills  v.  Duryee,  and 
most  of  them  commenting  on  it,  we 
should  be  bound  to  give  up  the  j)oint, 
if  that  case  settles  the  question  as  con- 
clusively as  it  has  been  su|)j)osed  it  did. 
But  all  tlie  State  judges  wlio  have  con- 
sidered that  case  are  of  opinion  that  it 
was  intended  only  to  embrace  judgmenta 


en.  II.]  THE   LAW   OF   PLACE.  123 

or  not  yet  certainly  established,  then  its  legitimacy  must  be 
proved  by  the  party  relying  upon  it.  (r)  It  is  not,  however, 
necessary  that  the  authority  on  which  the  jurisdiction  of  the 
tribunal  rests,  should  be  proved  to  be  legitimate  de  jure  as 
well  as  de  facto.  It  is  enough  if  it  be  de  facto  established, 
and  the  tribunal  be  commissioned  by  the  government  in 
which  the  sovereign  power  of  the  country  is  actually  vested,  [s) 

Another  essential  is,  that  the  defendant  in  the  foreign 
action  had  such  personal  notice  as  enabled  him  to  defend 
himself;  or  that  his  interests  were  otherwise  actually  and  in 
good  faith  protected,  if)  And  the  notice  must  be  such  as 
the  court  from  which  it  issued  has  authority  to  give,  [u) 

It  seems  to  be  held  that  a  plaintiff  who  has  recovered  a 
judgment  abroad  may  elect  to  sue  at  home  on  that  judg- 
ment, or  on  the  original  cause  of  action,  because  there  is  no 
merger,  {y) 

The  relations  between  the  several  States  of  the  Union  are 
peculiar.  In  some  respects  they  are  held  to  be  foreign  to 
each  other,  as  they  are  for  most  purposes  in  the  law  of  admi- 
ralty;  and  in  other  respects  not  foreign,  excepting  so  far  as 
this  is  necessarily  implied  in  their  independence  of  each 
other.  On  this  subject  the  Constitution  of  the  United  States 
declares,  that  "  full  faith   and  credit   shall  be  given  in  each 


where  the  defendant  had  been  a  party  cited  at  the  end  of  the  preceding  note. 

to  the   suit,   by  an   actual  appearance  See  also   Monroe  v.  l^ouglas,  4  Sandf. 

and  defence,  or  at  least  by  having  been  Ch.   126.     In  this  very  long  and  inte- 

duly  served  with  process  when  within  resting  case  the  whole  doctrine  of  the 

the  jurisdiction  of  the  court  which  gave  law  of  foreign  judgments  is  examined 

it,  and  they  formed  their  opinion  upon  with  great  ability.     And  see  Gleason  v. 

the  following  clause  in  the  opinion  of  Dodd,  4  Met.  3.3.3. 

Mr.  Justice  Story,  viz. :—  '  In  the  pre-         (r)  Snell  v.  Foussat,  3  Binn.  239,  n. ; 

sent  case  the  defendant  had   full  notice  Cheriot  v.  Foussat,  Id.  220. 

of  the   suit,  for  he  was   arrested  and        (s)  Bank  of  North  America  v.  M'Call, 

gave  bail,  and  it  is  beyond  all  doubt  4  Binn.  371. 

that   the   judgment    of    the    Supreme         (t)  See  ante,  p.  100,  n.  (A),  and  supra, 

Court  of  New   York    was    conckisive  n.  (q). 

upon  the  parties  in  that  State.'     If  this        (m)  Therefore,  where  a  court  in  Rhode 

is  all  that  was  intended  to  be  decided.  Island   ordered   personal   notice   to  be 

the   case   harmonizes  with  the  general  given   a   defendant    in    Massachusetts, 

course  of  decisions  in  the  State  courts  which  was  done,  it  was  not  such  a  no- 

as  before  cited,  and  it  is  in  no  respect  tice  as  would  suffice  for  the  foundatio  n 

different  from  the  decision  of  this  court  of  a  judgment  on  which  an  action  could 

in  the  case  of  Bissell  v.  Briggs."     That  be  maintained  in  Massachusetts.    Ewer 

the  doctrine  of  the  two  preceding  cases  v.  Coffin,  1  Cush.  23. 

is  now  the  established  doctrine  through-         (w)  Smith  v.  Nicolls,  5  Bing.  N.   C. 

out  the  country,   see    the    authorities  208;  Hall  y.  Odber,  1 1  East,  118. 


124  THE   LAW    OF   CONTRACTS.  [PART  II. 

State  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State.  And  the  congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and  pro- 
ceedings shall  be  proved,  and  the  efl'ect  thereof."  (iv)  In  ex- 
ecution of  this  power,  the  first  congress  passed  a  statute, 
providing  "  that  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted  in  any  other 
court  within  the  United  States  by  the  attestation  of  the 
clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  judge,  chief  justice,  or  pre- 
siding magistrate,  as  the  case  may  be,  that  the  said  attesta- 
tion is  in  due  form.  And  the  said  records  and  judicial  pro- 
ceedings, authenticated  as  aforesaid,  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United 
States  as  they  have  by  law  or  usage  in  the  courts  of  the 
State  from  whence  the  said  records  are  or  shall  be 
taken."  (x) 

In  the  construction  of  these  clauses,  many  questions  have 
been  raised,  and  a  great  diversity  of  opinion  manifested. 
The  more  important  of  these  questions  we  have  already  con- 
sidered in  our  notes. 

It  has  been  held  that  the  provisions  of  the  statute  must  be 
strictly  complied  with.  Thus,  it  will  be  noticed  that  the 
records  are  to  be  attested  by  the  seal  of  the  court,  "  if  there 
be  a  seal  ;"  therefore  the  records  of  a  court  not  having  a  seal 
may  be  sufficiently  attested  otherwise.  But  there  is  no  simi- 
lar phraseology  as  to  the  attestation  of  the  clerk  ;  that  is 
therefore  absolutely  requisite  ;  and  consequently  the  proceed- 
ings of  a  court  which  has  no  clerk,  as  a  court  held  by  a  jus- 
tice of  the  peace,  cannot  be  authenticated  in  the  terms  of  the 
statute,  and  therefore  cannot  be  entitled  to  the  whole  privilege 
which  purports  to  be  given  by  the  clause  in  the  constitution.  (//) 


(w)  Art.  4,  sect.  1.  Prescott,  4  N.  II.  450,  Mahurin  v.  Bick- 

{x)  1  U.  S.  Statutes  at  Large,  p.  122,  ford,  6   N.  H.   5G7,   mid   Silver  Lake 

ch.  xxxvii.  I3ank  v.  Harding,  5  Oiiio,    545.     But, 

(y)  This  question  is  very  fully  consi-  for  cases  which  incline  to  an  opposite 

dcrcd  in  Snyder  v.  Wise,  10  Tcnn.  St.  ojjinion.  see  IJisscU  v.  Edwards,  5  Day, 

157;  and  the  decision   there    is    in  ac-  .303,  Starkweather    r.  jA)ring,  2   Verm. 

cordance  with  the  text,  and  with  War-  573,   and  Blodget  t'.  Jordan,  6  Verm. 

ren  v.  Flagg,  2  Pick.  448,  llobinson  v.  580. 


CH.  II.]  THE   LAW   OF   PLACE.  125 

There  remains  to  be  considered  the  operation  of  the  law 
of  place  upon  the  insolvent  laws  of  this  country.  But 
these  laws  are,  in  this  respect,  principally  influenced  and 
affected  by  the  clause  in  the  constitution  which  forbids  the 
several  States  from  passing  laws  impairing  the  obligation  of 
contracts,  and  we  shall  advert  to  this  subject  when  we  speak 
specifically  of  that  clause. 


11 


126 


THE   LAA7   OF   CONTRACTS. 


[part  II. 


CHAPTER  III. 

DEFENCES. 

Sect.  I.  —  Payment  of  Money. 

1.   Of  the  parly  to  wliom  payment  should  be  made. 

Payment  to  an  agent  in  the  ordinary  course  of  business 
binds  the  principal,  unless  the  latter  has  notified  the  debtor 
beforehand  that  he  requires  the  payment  to  be  made  to  him- 
self, (z)  And  sometimes  a  payment  to  the  debtor''s  own 
agent  suffices,  [a)  So  payment  to  an  attorney  is  as  effectual 
as  if  made  to  the  principal  himself;  {b)  but  not  so  to  an 


(?)  Favenc  v.  Bennett,  11  East,  36  ; 
Hornby  v.  Lacy,  6  M.  &  S.  166  ;  Drink- 
water  V.  Goodwin,  Cowp.  251.  So  if 
one  allows  an  agent  to  trade  in  his  own 
name,  and  as  carrying  on  business  for 
himself,  jjayment  to  such  agent  is  a  bar 
to  an  action  by  the  principal.  Gardi- 
ner V.  Davis,  2'  C.  &  r.  49.  And  see 
Coates  V.  Lewis,  1  Campb.  444 ;  Moore 
r.  Cleraentson,  2  Id.  24.  And  in  Capcl 
V.  Thornton,  3  C.  &  P.  352,  it  was 
ruled  by  Lord  Tenterden  that  an  agent 
authorized  to  sell  goods  has,  in  the  ab- 
sence of  advice  to  the  contrary,  an  im- 
plied autiiority  to  receive  payment.  But 
sec  Jackson  v.  Jacob,  5  Scott,  79 ; 
Blackburn  v.  Scholes,  2  Campb.  343. 

(a)  Horsfall  v.  Fauntleroy,  10  B.  & 
Cr.  755.  In  this  case  the  plaintiff,  wlio 
was  an  importer  of  ivory,  had  caused 
catalogues  to  l)e  circulated,  stating  that 
a  c^uantity  of  ivory  was  to  be  sold  on 
his  account  on  a  certain  day  by  auc- 
tion, suliject  to  the  condition,  among 
others,  that  payment  was  to  be  made  on 
delivery  of  the  bills  of  parcels.  The 
defendant,  having  received  one  of  the 
catalogues,  instructed  his  broker  to  pur- 
chase certain  lots  oti  his  account,  'i'lie 
broker  did  so,  and  shortly  after  drew 
bills  on  the  dvfendaut  for  the  amount, 


which  were  accepted  and  paid  at  ma- 
turity. In  an  action  by  the  plaintiff 
against  the  defendant  for  the  price  of 
the  ivory,  the  court  held  that  the  pay- 
ment of  the  bills  drawn  Ijy  the  broker 
constituted  a  good  defence,  inasmuch 
as  the  plaintiff,  by  the  condition  of  sale 
contained  in  his  catalogues,  had  author- 
ized the  defendant  to  believe  that  the 
ivory  had  been  paid  for  by  the  broker 
on  delivery  of  the  bills  of  panels. 

(b)  Powell  V.  Little,  1  Wm.  Bl.  8 ; 
Yates  ('.  Frcckleton,  2  Doug.  623  ;  Hud- 
son V.  Johnson,  1  Wash.  9 :  Branch  v. 
Burnley,  1  Call,  147.  And  an  attorney 
has  authority  to  receive  payment  as 
well  after  judgment  has  been  recovered 
as  before.  Brackett  v.  Norton,  4  Conn. 
517  ;  Erwin  v.  Blake,  8  Pet.  18;  Gray 
V.  Wass,  1  Greenl.  257  ;  Lewis  v.  Ca- 
rnage, 1  Pick.  347.  But  an  attorney 
has  no  authority  to  receive  any  thing 
but  money  in  payment  of  his  client's 
debt,  nor  a  part  in  satisfaction  of  the 
whole.  Savoury  r.  Chapman,  8  Dowl. 
656  ;  Jackson  i\  Bartlett,  8  Jolins.  361  ; 
Kellogg  V.  Gill)ert,  10  Johns.  220  ;  Car- 
ter V.  'I'alcott.  1(1  \'erm.  471  ;  Gullett  v. 
Lewis,  3  Stewart,  23  ;  Kirk  v.  Glovcr, 
5  Stew.  &  Port.  340. 


en.  III.] 


DEFENCES. 


127 


agent  of  the  attorney  appointed  by  the  attorney  to  sue  the 
debtor,  (c)  And  where  one  contracts  to  do  work  and  sues 
for  the  price,  the  defendant  may  prove  that  the  plaintiff  had 
a  partner  in  the  undertaking,  and  that  he  has  paid  that  part- 
ner. {(/)  Payment  to  the  creditor's  wife  will  not  be  a  good 
payment ;  (e)  unless  she  was  his  agent,  either  expressly  or 
by  course  of  business.  (/)  She  has  no  authority,  as  ivife,  to 
receipt  for  her  husband's  claims,  although  she  be  the  merito- 
rious cause,  (g)  An  auctioneer  or  other  agent  employed  to 
sell  real  estate  has  no  implied  authority  to  receive  pay- 
ment. (A)  In  case  of  sales  by  auction,  the  auctioneer  has 
usually  by  the  conditions  of  sale  authority  to  receive  the  de- 
posit, but  not  the  remainder  of  the  purchase-money,  (i) 

One  may  be  justified  in  making  payments  to  a  party  who 
is  sitting  in  the  creditor's  counting-roo  and  apparently  in- 
trusted with  the  transaction  of  the  business  and  authorized 
to  receive  the  money,  although  he  be  not  so  in  fact,  (j)  In 
general  it  is  only  a  money  payment  that  binds  the  princi- 
pal ;  (k)  so  that  he  is  not  affected  by  any  claim  which  the 
debtor  may  have  against  the  agent,  (l)     And  an  agent  au- 


(c)  Yates  v.  rreckleton,  2  Doug.  623. 
For  an  attorney  at  law,  by  virtue  of  his 
ordinary  powers,  cannot  delegate  his 
authority  to  another,  so  as  to  raise  a 
privity  between  such  third  person  and 
his  principal,  or  to  confer  on  liim  as  to 
the  principal,  his  own  rights,  duties,  and 
obligations.  Johnson  v.  Cunningham, 
1  Ala.  249  ;  Kellogg  v.  Norris,  5  Eng. 
[Ark.]  18.  So  payment  to  a  sheriff 
employed  by  an  attorney  to  serve  a  writ 
will  not  discharge  the  debt.  Green  v. 
Lowell,  3  Greenl.  373  ;  Waite  v.  Dcles- 
dernier,  15  Maine,  144. 

(d)  Shepard  v.  Ward,  8  Wend.  542. 
And  it  is  a  general  rule  that  payment 
to  one  partner  is  good,  and  binds  the 
firm.  Duff  V.  The  East  India  Co.  15 
Ves.  198  ;  Yandes  v.  Lefavour,  2  Blackf. 
371 ;  Gregg  v  James,  Breese,  107  ;  Por- 
ter ?;.  Taylor.  6  M.  &  S.  156;  Scott  v. 
Trent,  I  Wash.  77.  Even  after  disso- 
lution. King  V.  Smith,  4  C.  &  P.  108. 
And  see  Morse  v.  Bellows,  7  N.  H. 
568.  So  payment  to  one  of  two  joint 
creditors  is  good,  although  they  are  not 
partners  in  business.  Morrow  v.  Starke, 
4  J.  J.  Marsh.  367. 


(e)  Offley  v.  Clay,  2  Scott,  N.  R.  372. 

(/)  Spencer  v.  Tisue,  Addison,  316  ; 
Seaborne  v.  Blackston,  2  Freeni.  178; 
Thrasher  v.  Tuttle,  22  Maine,  335. 

(9)  Offley  V.  Clay,  supra. 

(h)  Mynn  v.  Joliffe,  1  Mood.  &  Rob. 
326. 

(?)  Mynn  v.  Joliffe,  supra;  Sykes  v. 
Giles,  5  M.  &  W.  645. 

( _/)  Barrett  v.  Deere,  Mood.  &  Malk. 
200".  And  see  Wilmott  v.  Smith,  Id. 
238  ;  Moffat  v.  Parsons,  5  Taunt.  307. 
But  payment  to  an  apprentice  not  in 
the  usual  course  of  the  creditor's  busi- 
ness, but  on  a  collateral  transaction, 
has  been  held  not  to  discharge  the  debt, 
although  made  at  the  creditor's  count- 
ing-room- Saunderson  v.  Bell,  2  Cr.  & 
M.  304. 

(^•)  Thorold  v.  Smith,  11  Mod.  71. 

(/)  Thus,  where  an  assured  who  re- 
sided at  Plymouth  employed  an  insur- 
ance broker  in  London  to  recover  a  loss 
from  tlic  underwriters,  and  the  latter 
adjusted  the  loss  by  setting  oft'  in  ac- 
count against  it  a  debt  due  from 
him  to  tlie  underwriters  for  i)reiniums, 
and  the  broker  became  bankrupt,  and 


128 


THE   LAAV   OF   CONTRACTS. 


[part  II. 


thorized  to  receive  payment  in  money  cannot  bind  his  prin- 
cipal by  receiving  goods,  (?;/)  or  a  bill  or  note,  (w) 

Payment  by  bankers  to  one  of  several  persons  who  have 
jointly  deposited  money  with  them,  and  who  are  not  part- 
ners, or  to  one  of  several  joint  trustees,  does  not  discharge 
the  bankers  as  to  the  others,  unless  they  had  authorized  the 
payment,  (o)  And  ]iayment  to  one  of  two  or  more  joint 
creditors  of  a  part  of  the  debt  does  not  so  alter  the  nature  of 
the  debt  as  to  permit  the  other  creditors  to  sue  alone  for  the 
remainder,  (p)  But  payment  to  one  of  several  executors  is 
held  to  be  suilicient.  (q)  Whether  payment  to  one  of  seve- 
ral assignees  of  a  bankrupt  is  sufficient,  may  be  doubtful ;  it 
seems  clear  that  it  is  not,  if  shown  to  have  been  against  the 
will  of  the  co-assignees,  (r)     In  general,  a  payment   to  a 


never  paid  the  money  to  the  assured,  it 
was  Iwid  that  the  set-oti'  in  account  be- 
tween the  underwriters  and  tlie  broker 
was  not  payment  to  the  assured,  inas- 
much as  the  broiler  had  only  authority 
to  receive  payment  in  money.  Bart- 
lett  V.  Pentland,  10  B.  &  Cr.  760. 

(m)  Howard  v.  Chapman,  4  C.  &•  P. 
508. 

(n)  Sykes  v.  Giles,  5  M.  &  W.  645; 
Ward  V.  Evans,  2  Ld.  Raym.  928.  And 
see  Townsend  v.  Inglis,  Holt,  N.  P. 
278.  But  (^Htcre  whether,  in  those  States 
where  the  giving  of  a  negotiable  pro- 
missory note  is  regarded  as  prima  facie 
payment,  an  agent  would  not  be  au- 
thorized to  receive  payment  by  such 
bill  or  note. 

(o)  Innes  v.  Stephenson,  1  Mood.  & 
Rob.  145.  The  depositors  here  were 
co-assignees  of  a  bankrupt,  and  the 
money  had  been  drawn  out  on  the 
check  of  two  out  of  tln-cc  depositors, 
but  the  name  of  one  of  the  two  was 
forged.  Lord  Tenterden  said  "  that  the 
case  was  a  very  clear  one ;  that  money 
was  paid  to  bankers  by  throe  persons, 
not  partners  in  trade  ;  that  it  had  been 
stated  that  one  of  them  could  draw 
checks  so  as  to  bind  the  others,  but  that 
was  not  the  law,  and  to  allow  it  would 
defeat  the  very  object  of  paying  the 
money  in  jointly;  and  it  must  be  well 
known  to  the  jury  that  it  was  not  the 
practice,  unless  the  persons  drawing 
stood  in  the  relation  of  partners."  And 
see  to  the  same  effect  Sionc  v.  Marsh, 
Ryan  &  Moody,  364.    But  this  rule  as 


to  bankers  is  peculiar.  "  It  is  a  general 
rule,"  says  Mr.  Justice  Maule,  "  that  a 
man  may  pay  a  debt  to  one  of  several 
persons  with  whom  he  has  contracted 
jointly.  In  tlie  case  of  a  banker  he  can- 
not do  so  ;  but  that  arises  from  the  par- 
ticular contract  which  exists  between 
him  and  his  customer."  Husband  v. 
Davis,  4  Eng.  Law  &  Eq.  342. 

(p)  Ilatsall  V.  Griffith,  4  Tyrwh.  488. 
In  this  case  two  of  three  part-owners  of 
a  vessel,  acting  for  themselves  and  the 
other  part-owner,  employed  an  agent  to 
sell  the  whole  vessel.  He  did  so,  and 
paid  the  two  their  proportion  of  the 
})roceeds.  The  other  part-owner  brought 
an  action  against  the  agent  to  recover 
his  proportion.  It  was  lidd  that  he 
could  not  sue  alone,  as  the  agent  Avas 
employed  by  all  the  owners.  The  case 
of  Garret  v.  Taylor,  1  Esp.  Nisi  Prius, 
117,  contra,  is  not  law.  See  a/i/c,  vol. 
1,  p.  20,  n.  But  this  rule  docs  not  ap- 
ply in  cases  founded  upon  tort.  Sedg- 
worth  V.  Overend,  7  T.  R.  27'J. 

(7)  "Because,"  says  Lord  llardwicke, 
"  they  have  each  a  power  over  the 
whole  estate  of  the  testator,  and  are 
considered  as  distinct  persons."  Can  v. 
Read,  3  Atk.  695. 

(?•)  In  Can  v.  Read,  supra,  if  the  re- 
port is  correct.  Lord  Ilardwicke  stated 
in  general  terms  that  payment  to  one 
assignee  would  not  be  a  discharge  with- 
out a  receii)t  from  the  others  also.  In 
Smitli  V.  Jameson,  1  Esp.  1 1 4,  Lord  Ken- 
yon  ruled,  at  Nisi  Prius,  that  one  assignee 
of  a  bankrupt  estate  might  receive  the 


en.  HI.] 


DEFENCES. 


129 


trustee  is  effectual  against  his  cestui  que  trust  at  law,  even  in 
cases  where  it  would  be  relieved  against  in  equity,  (s) 

If  one  of  several  plaintiifs,  or  a  nominal  plaintiff  suing  for 
the  benefit  of  another,  discharge  the  debt  by  a  collusive  re- 
ceipt, without  payment  of  money,  a  court  of  law  will  pre- 
vent the  defendant  from  availing  himself  thereof,  on  applica- 
tion by  the  plaintiff,  made  as  soon  as  may  be  after  a  know- 
ledge of  the  fraud,  [i] 

2.  Of  part  payment. 

It  has  been  said  that  a  payment  of  a  part  of  a  debt,  or  of 
liquidated  damages,  is  no  satisfaction  of  the  whole  debt,  even 


money  belonging  to  the  estate,  and 
give  a  legal  and  valid  discharge  for  it. 
Afterwards  in  Bristow  v.  Eastman,  1 
Esp.  172,  the  same  qnestion  was  pre- 
sented to  Lord  Kenyan  again.  That 
was  an  action  of  assumpsit  for  money 
had  and  received,  brought  by  the  as- 
signees of  a  bankrupt.  At  the  trial  the 
defendant  produced  a  receipt  from  one 
of  the  assignees.  But  upon  its  being 
shown  that  it  had  been  given  against 
the  will  of  tlie  co-assignee,  the  learned 
judi^e  said,  "  that  all  the  rights  of  pro- 
perty of  the  bankrupt  centred  in  the 
assignees,  and  though  the  act  of  one  in 
receiving  part  of  the  bankrupt  estate 
might,  if  fairly  done,  bind  the  estate  by 
any  discharge  he  might  give  for  it,  that 
it  could  never  be,  that  where  one  as- 
signee had  shown  his  express  dissent 
that  the  other  might  give  a  receipt, 
binding  on  the  estate ;  as  such  a  con- 
struction would  enable  one  assignee  to 
dissipate  and  destroy  the  estate,  in  de- 
spite of  his  brother  trustee."  See  also 
Williams  v.  Walsby,  4  Esp.  220  ;  Stew- 
ard V.  Lee,  Mood.  &  Malk.  158. 

(s)  This  is  because  the  cestui  que  trust 
is  obliged  to  proceed  in  a  court  of  law 
in  the  name  of  the  trustee,  and  as  a 
court  of  law  can  only  consider  tbe  par- 
ties on  the  record,  whatever  is  an  an- 
swer as  to  the  trustee  is  an  answer  to 
the  action.  Gibson  v.  Winter,  5  B.  & 
Ad.  96.  In  modern  times,  however, 
courts  of  law  have  been  in  the  habit  of 
exercising  an  equitable  jurisdiction  on 
motion,  and  preventing  a  defendant 
from  availing  himself  of  such  a  defence 
unjustly.     See  the  next  note. 

\t)  Barker  v.  Richardson,  1  Y.  &  J. 


3G2  ;  Legh  v.  Legh,  1  B.  &  P.  447  ;  In- 
nell  V.  Newman,  4  B.  &  Aid.  419; 
Mountstephen  v.  Brooke,  1  Chitty,  .390  ; 
Mannings.  Cox,  7  Moore,  617:  John- 
son V.  Holdsworth,  4  Dowl.  P.  C.  63  ; 
Payne  v.  Rogers,  Doug.  407  ;  Hickey 
V.  Burt,  7  Taunt  48 ;  Alner  v.  George, 
1  Campb.  392;  Strong  v.  Strong,  2 
Aikens,  373  ;  Green  v.  Beatty,  Coxe, 
142.  But  a  release  from  one  of  several 
plaintiffs  will  not  be  set  aside,  unless  a 
clear  case  of  fraud  is  made  out  hdween 
the  releasor  and  releasee.  Fraud  upon 
the  releasor  alone  is  not  a  sufficient 
ground  for  calling  upon  the  equitable 
jurisdiction  of  the  court,  since  that  may 
be  replied.  Wild  v.  Williams,  6  M.  & 
W.  490.  "  If  such  a  release,"  says  Ba- 
ron Parke,  Phillips  v.  Clagett,  1 1  jNI.  & 
W.  93,  "  is  a  fraud  in  point  of  law  upon 
one  of  the  parties  to  it,  the  court  would 
not  interfere  ;  that  is  the  proper  subject 
for  a  replication  ;  they  can  only  interfere 
when  it  is  a  fraud  on  third  persons,  and 
when  a  court  of  equity  would  clearly 
set  aside  the  release,  not  merely  as  be- 
tween the  parties  one  of  whom  releases, 
but  where  they  would  set  it  aside  as 
against  the  defendant."  So  in  tiie  still 
later  case  of  Rawstorne  v.  Gandell,  15 
M.  &  W.  304,  the  rule  was  laid  down 
that  the  court  will  not  set  aside  a  plea 
of  a  release  by  one  of  several  co-plain- 
tiffs, unless  it  is  clearly  shown  to  haA'e 
been  made  in  fraud  of  the  other  plain- 
tifls,  or  unless  the  releasor  be  a  mere 
nominal  party  to  the  action,  having  no 
interest  whatever  in  the  subject-matter 
of  it.  —  In  the  case  of  Alncr  v.  George, 
1  Campb.  392,  Lord  Ellenhorouyh  ruled 
that   this   equitable    jurisdiction   could 


130 


THE   LAW   OF   CONTRACTS. 


[part  II. 


where  the  creditor  agrees  to  receive  a  part  for  the  whole,  and 
gives  a  receipt  for  the  whole  demand  ;  and  a  plea  of  pay- 
ment of  a  small  sum  in  satisfaction  of  a  larger  is  bad  even 
after  verdict.  (//)  But  this  rule  must  be  so  far  qualified  as 
not  to  include  the  common  case  of  a  payment  of  a  debt  by 
a  fair  and  well  understood  compromise,  carried  faithfully 
into  effect,  even  though  there  were  no  release  under  seal,  (v) 


not  be  exercised  by  a,  single  jiulgc  at 
Nisi  Prius. 

(u)  Pinncl's  case,  5  Rep.  117  ;  Cum- 
ber I'.  Wane,  Strange,  425  ;  Thomas 
V.  Hcathom,  2  B.  &  Cr.  477  ;  Fitch 
r.  Sutton,  5  East,  230  ;  Blanchard  v. 
Noyes,  3  N.  II.  518 ;  AVhceler  ;;.  Wheel- 
er, 11  Verm.  CO;  Bailey  v.  Day,  26 
Maine,  88  ;  Down  v.  Hatcher,  10  Ad  & 
El.  121;  Geiser  v.  Kershncr,  4  Gill  & 
Johns.  305  ;  Watkinson  v.  Inglesby,  5 
Johns.  386  ;  Dederick  v.  Leman,  9 
Johns.  333;  Seymour  v.  Minturn,  17 
Jolins.  169.  But  it  has  been  held  that, 
upon  a  plea  of  payment,  the  accejitance 
of  a  less  sum  may  be  left  to  the  jury  as 
evidence  that  the  rest  has  i)cen  paid. 
Henderson  v.  Moore,  5  Cranch,  11  ; 
Blanchard  v.  Noycs,  3  N.  H.  518.— Pay- 
ment of  a  debt  alone,  without  tlie  costs, 
made  after  suit  brought,  is  not  a  good 
payment  to  bar  the  action.  Costs  with 
nominal  damages  may  still  be  recover- 
ed, at  least  up  to  tlic  time  of  payment. 
Stevens  v.  Briggs,  14  Verm.  44  ;  Goings 
V.  Mills,  1  Pike,  [Ark.]  11.  And  sec 
Horsburgh  v.  Ornic,  1  Canipb.  558, 
note;  Godard  v.  Benjamin,  3  Campb. 
331 ;  Goodwin  v.  Cremer,  16  Eng.  Law 
&  Eq.  90.  So  if  two  actions  be  com- 
menced on  a  bill  or  note  against  sepa- 
rate parties,  and  the  debt  and  costs  in 
one  suit  be  paid,  this  is  not  such  a  pav- 
raent  as  will  defeat  the  other  action, 
but  the  plaintiff"  is  entitled  to  nominal 
damages  and  costs.  Randall  v.  Moon, 
14  Eng.  Law  &  Eq.  243 ;  Goodwin  v. 
Cremer,  supra,  and  editor's  note.  But 
in  Beaumont  v.  Grcathead,  3  Dowl.  & 
Lowndes,  P.  C  631,  it  was  held  that 
payment  and  acceptance  of  the  amount 
of  a  promissory  note  after  it  becomes 
due,  and  when  the  holder  is  entitled  to 
nominal  dmnarjes,  will  support  a  i)loa  of 
payment  and  acceptance  in  discharge  of 
the  dclit  and  damages  ;  and  that  conse- 
quently the  holder,  after  such  payment 
and  acceptance,  cannot  maintain  an  ac- 
tion for  such  nominal  diimar/os.  And  per 
Made,  J.,  "  The  point  is,  whether,  after 


default  on  a  simple  contract  for  .£50,  in 
respect  of  which  the  defendant  is  liable  to 
nominal  damages,  if  tlie  party  accept 
that  sum,  he  can  afterwards  sue  for  those 
nominal  damages.  I  think  he  cannot. 
Those  nominal  damages,  in  fact,  are 
introduced  solely  for  a  technical  pur- 
pose, because  the  statute  of  Gloucester 
{6  Ed.  1,  eh.  1,  s.  2,)  says  '-damages;" 
and  are,  in  effect,  only  a  peg  to  hang 
costs  on.  The  creditor,  for  example, 
says,  you  owe  me  a  debt  of  £50,  aJid  a 
nominal  sum  ;  the  debtor  thereupon 
takes  out  .£50  and  pays  it  to  him,  say- 
ing here  is  the  £50  debt  and  the  nomi- 
nal sum.  That  nominal  sum  means  in 
fact  no  sum  at  all ;  it  is  not  merely  an 
insignificant  sum,  but  a  sum  which  does 
not  exist,  in  point  of  quantity,  at  all. 
It  lias  a  mere  fictitious  existence  ;  and 
therefore,  I  say,  a  man  may  well  re- 
ceive £50  in  satisfaction  and  discharge 
of  a  debt  of  £50,  and  nominal  dama- 
ges." 

(v)  ]\Iilliken  v.  Brown,  1  Rawle,  391. 
There  a  creditor  of  three  joint  debtors 
accepted  from  one  of  them  one  third  of 
the  debt  with  intent  to  exonerate  him. 
This  was  held  to  operate  as  a  release  as 
to  him,  and  therefore  as  to  the  other 
two  also.  Ilustnn,  J.,  said: — "There 
was  a  time  in  the  history  of  the  law, 
when,  like  every  thing  else  of  that  day, 
it  was  a  system  of  metaphysics  and  lo- 
gic ;  and  when  the  cause  was  decided 
without  the  slightest  regard  to  its  jus- 
tice, solely  on  the  technical  accuracy  of 
the  pleaders  on  tlie  several  sides  :  de- 
fect of  form  in  the  plea  was  defect  of 
right  in  him  who  used  it.  This  period 
of  juridical  history,  however,  was  in  some 
respects  distinguished  by  great  mcTi,  of 
great  learning,  and  abounds  with  in- 
formation to  the  student.  At  the  time 
I  s])eak  of,  payment  of  debt  and  inte- 
rest on  a  bond,  the  next  day  after  it  fell 
due,  was  no  defence  in  a  court  of  law ; 
nay,  it  was  no  defcn(te  to  prove  payment 
without  an  acquittance  before  the  day; 
nay,  if  you  pleaded  and  proved  a  pay- 


CII.  III.] 


DEFENCES. 


131 


Some  exceptions  to  the  rule  have  always  been  acknowledg- 
ed ;  as  if  a  part  be  paid  before  all  is  due,  (iv)  or  in  a  way- 
more  beneficial  to  the  creditor  than  that  prescribed  by  the 
contracts ;  (x)  here  it  is  said  there  is  a  new  consideration  for 
the  release  of  the  whole  debt.  And  if  a  stranger  pay  from 
his  own  money,  or  give  his  own  note,  for  a  part  of  a  debt 
due  from  another,  in  consideration  of  a  discharge  of  the 
whole,  such  discharge  is  good.  (;/) 


ment,  wliicli  was  accepted  in  full  of  the 
debt,  yet  you  failed  unless  your  plea 
stated  that  you  paid  it  in  full,  as  well 
as  that  it  was  accepted  in  full ;  or  per- 
haps because  you  pleaded  it  as  a  pay- 
ment, when  you  ought  to  have  pleaded 
it  as  an  accord  and  satisfaction.  An 
act  of  parliament  or  two,  and  the  con- 
stant interference  of  the  Court  of  Chan- 
cery, granting  relief,  have  changed  this 
in  a  great  measure ;  but  it  is  not  a  cen- 
tury since  it  was  solemnly  decided,  that 
if  a  ci-editor,  finding  his  debtor  in  fail- 
ing circumstances,  and  being  afraid  of 
losing  his  debt,  proposed  to  give  him  a 
discharge  in  full  if  he  paid  half  the  mo- 
ney, and  the  debtor  borrowed  the  money 
and  paid  the  one  half  on  the  day  the  bond 
fell  due,  and  got  an  acquittance  in  terms 
as  explicit  as  the  English  language  could 
afford,  yet,  if  sued,  he  must  pay  the  rest 
of  the  debt ;  for  it  was  impossible,  say 
the  court,  payment  of  part  could  be  a 
satisfaction  of  the  whole ;  but,  if  part 
was  paid  before  the  day,  it  was  a  good 
satisfaction  of  the  whole.  I  mention 
this  not  from  a  general  disrespect  to 
the  law  or  lawyers  of  the  days  I  speak 
of,  but  for  another  purpose.  It  has, 
alas  !  become  too  common  for  men  of 
good  character  and  principles,  but  who 
trade  on  borrowed  capital,  to  fail,  and 
their  creditors  are  glad  to  receive  hfty 
cents  in  the  dollar,  and  give  a  discharge 
in  full ;  and  I  do  not  know  the  lawyer 
who  would  be  hardy  enough  to  de- 
ny the  validity  of  such  discharge,  al- 
though given  after  the  money  was  due, 
and  although  the  discharge  was  not  un- 
der seal,  or  although  it  might  be  doubt- 
ful whether  it  could  more  properly  be 
called  a  receipt  or  a  release,  or  a  cove- 
nant never  to  sue,  if  the  meaning  can 
be  certainly  ascertained,  and  no  fraud, 
concealment,  or  mistake  at  the  giving 
it,  it  is  effectual.  It  avails  little,  then, 
to  go  back  to  the  last   century,  or  fur- 


ther, to  cite  cases  in  which  a  matter 
was  of  validity  or  effect  according  as  it 
was  couched  in  this  or  that  form.  Uni- 
versally the  law  is,  or  ought  to  be,  that 
the  meaning  or  intention  of  the  parties 
is,  if  it  can  be  distinctly  known,  to  have 
effect,  unless  the  intention  contravenes 
some  well  established  principle  of  law." 

{w)  Pinnel's  case,  5  llep.  117;  Brooks 
V.  White,  2  Met.  283 ;  Smith  v.  Brown. 
3  Hawks,  580. 

(.r)  As  if  the  debtor  give  his  own  ne- 
gotiable note  for  part  of  the  debt.  Sib- 
ree  v.  Tripp,  15  Mecs.  &  Welsh.  23, 
where  the  cases  of  Cumber  v.  Wayne, 
1  Strange,  426,  and  Thomas  v.  Heath- 
orn,  2  B.  &  C.  477,  are  somewhat  shak- 
en. Or  if  the  debtor  pay  a  part  at  a 
more  convenient  place  than  stipulated 
for  in  the  contract,  this  will  be  a  good 
satisfiiction  for  the  whole,  if  so  received. 
Smith  V.  Brown,  3  Ilawkes,  580.  So  if 
the  debtor  give  and  the  creditor  receive 
a  chattel,  in  satisfaction  of  a  whole  debt, 
this  is  a  good  defence,  although  the 
chattel  may  not  be  of  half  the  value  of 
the  debt.  Andrew  v.  Boughey,  Dyer, 
75,  a;  Pinnel's  case,  5  Rep.  117  ;  and 
see  Sibree  v.  Tripp,  15  M.  &  W-.  35, 
Parke,  B. ;  Brooks  v.  White,  2  Met. 
285,  286,  Dewey,  J. ;  Jones  v.  Bullitt,  2 
Littell,  49  ;  Douglass  v.  White,  3  Barb. 
Ch.  R.  621.  So  if  the  debtor  render 
certain  services,  by  consent  of  the  cre- 
ditor, in  full  payment  of  a  debt,  this  is 
a  good  discharge,  whatever  the  nature 
of  the  services.  Blin  v.  Chester.  5  Day, 
359.  Or  assign  certain  property.  Wat- 
kinson  v.  Ingleby,  5  Johns.  386  ;  Eaton 
V.  Lincoln,  13  Mass.  424. 

iy)  Brooks  v.  White,  2  Met.  283  ; 
Boyd  V.  Hitchcock,  20  Johns.  76 ;  Kel- 
logg V.  Richards,  14  Wend.  116;  Lc 
Page  V.  McCrea,  1  Wend.  164  ;  Sanders 
V.  Branch  Bank,  13  Ala.  353  ;  Lewis  v. 
Jones,  4  B.  &  C.  506 ;  Steinraan  v. 
Magnus,  1 1  East,  390. 


132  THE   LAW   OF   CONTRACTS.  [PART  II. 

If  a  creditor  by  his  own  act  and  choice  compel  a  payment 
of  a  part  of  his  claim  by  procefes  of  law,  this  will  generally 
operate  as  an  extinguishment  of  his  whole  claim,  under  the 
rule  that  he  shall  not  so  divide  an  entire  cause  of  action  as 
to  give  himself  two  suits  upon  it.  (z)  He  may  often  bring 
his  action  for  a  part;  but  a  recovery  in  that  action  bars  a 
suit  for  the  remainder.  As  if  one  has  a  demand  for  three 
articles  under  one  contract,  and  sues  for  one,  he  cannot  after- 
wards bring  his  action  for  the  other  two.  Or  if  a  note  be 
given  as  security  for  a  sum  to  be  paid  by  instalments,  and 
the  note  is  sued,  and  judgment  recovered  for  the  instalments 
then  due,  it  has  been  held  that  he  cannot  afterwards  put  the 
note  in  suit  to  recover  the  remaining  instalments  when  they 
fall  due.  («)  But  a  second  indorser  may  bring  one  action 
against  a  prior  indorser  for  moneys  paid,  and  a  second  action 
for  moneys  subsequently  paid,  (b) 


3.  Of  payment  by  letter. 

Payment  is  often  made  by  letter ;  and  the  question  arises, 
at  whose  risk  it  is  when  so  made.  This  must  depend  upon 
circumstances ;  but  in  general  the  debtor  is  discharged,  al- 
thoujih  the  money  do  not  reach  the  creditor,  if  he  was  direct- 
ed or  expressly  authorized  by  the  creditor  so  to  send  it,  or  if 
he  can  distinctly  derive  such  authority  from  its  being  the 
usual  course  of  business  ;  but  not  otherwise,  (c) 

{z)  Ingraham  v.  Hall,  11  S.  &  R.  78  ;  15  Johns.   432.     But  the  general  rule 

Smith  ?;.  Jones,  15  Johns.  229  ;  Farring-  stated   in  the  text  must  be  conlincd  to 

ton  V.  Pavne,  Id.  432  ;  Willard  i\  Sper-  cases  where   the  claim  is  single  and  in- 

ry,   16  Johns.  121;  Phillips  v.  Berick,  divisible.     Phillips  i^.  Berick,  16  Johns. 

Id.   136.      So   assi};ning   a   part  of  his  136. 

claim  will  not  enable  a  creditor  to  sub-  (a)  Siddall  v.  Rawcliff,  1  M.  &  Rob. 

ject  his  debtor  to  two  suits.     Ingraliam  263.     But  we  should  have  some  doubt 

v.  Mall.  11  S.  &  K.  78.     Nor  can  a  ere-  of  this;  for  it  is  every  day's  practice  to 

ditor,  after  having  compelled  payment  bring  actions  on  notes  when  interest  is 

ota  part  of  bis  claim  i)y  process  of  law,  payable  annually,  and  recover  the  same 

avail  himself  of  the  residue  by  way  of  from   year  to  year,  although  the  note 

set-off  in  an  action  against  him  by  the  may  not  be  due  for  many  years.     And 

other  party.    Miller  ?'.  Covent,  1  VVend.  indeed  the   above   case  seems  to  have 

487.     And    the   same   rule   applies    to  been  decided  in  a  great  measure  on  the 

torts.     If  a  person  by  one  and  tlic  same  ground  that  such  a  note  was  a  fraud  on 

act  convert  several  of  the  plaintiff's  ar-  the  stamp  acts. 

ticlcs,  he  cannot  havfc  a  separate  action  {!/)  Wright  v.  Butler,  6  Wend.  284. 

for  each  article.     Farrington  v.  Payne,  (cj  Warwicke  v.  Noakcs,  Peake,  67. 


CII.  III.] 


DEFENCES. 


133 


4.   Of  payment  in  hank-bills. 

In  this  country,  where  paper-money  is  in  universal  use, 
questions  often  arise  as  to  payments  made  in  that  way.  It 
seems  to  be  settled  that  a  payment  in  good  bank-bills,  not 
objected  to  at  the  time,  is  a  good  payment ;  and  so  is  a 
tender  of  such  bills  ;  [d)  but  the  creditor  may  object  and  de- 


This  was  an  action  of  assumpsit  for 
goods  sold  and  delivered,  and  money 
had  and  received.  Tlie  plaintift'  was  a 
hop  merchant,  and  the  defendant  his 
customer,  living  at  Sherborne,  in  Dor- 
setshire. The  plaintiff  sold  him  hops, 
and  also  sold  hopa  to  several  persons 
in  that  neighborhood ;  and  requested 
the  defendant,  as  his  friend,  to  receive 
the  money  due  to  him  from  his  other 
customers,  and  remit  him  by  the  post  a 
bill  for  those  sums,  and  also  the  money 
due  to  him  from  the  defendant  himself. 
A  bill  was  accordingly  remitted,  but 
the  letter  got  into  bad  hands,  and  the 
bill  was  received  by  some  third  person 
at  the  banker's  on  whom  it  was  drawn. 
Upon  this  evidence  Lord  Kenyan  non- 
suited the  plaintiff",  and  said :  —  "  Had 
no  directions  been  given  about  the  mode 
of  remittance,  still  this  being  done  in 
the  usual  way  of  transacting  business 
of  this  nature,  I  should  have  held  the 
defendant  clearly  discharged  from  the 
money  he  had  received  as  agent.  It 
was  so  determined  in  the  Court  of 
Chancery  forty  years  since  ;  and  as  the 
plaintiff'  in  this  case  directed  the  defend- 
ant to  remit  the  whole  money  in  this 
way,  it  was  remitted  at  the  peril  of  the 
plaintiftV  And  see  Kington  v.  King- 
ton, 11  M.  &  W.  233.  In  Wakefield  v. 
Lithgow,  3  Mass.  249,  a  sheriff  had  al- 
lowed an  execution  in  his  hands  to  lie 
by  until  the  return  day  had  passed,  and 
tlie  creditor's  attorney  wrote  to  the  she- 
riff", presuming  he  had  collected  the 
money,  and  recjuested  him  to  send  it  to 
him  by  mail.  At  that  time  the  sheriff" 
had  not  received  the  money,  but  col- 
lecting it  several  months  afterwards, 
sent  it  by  mail  to  the  plaintiff's  attor- 
ney, to  whom,  however,  it  was  never 
delivered.  It  was  held  that  the  sheriff 
was  liable  to  the  creditor,  and  that  the 
money  was  sent  at  his  own  risk.  Other- 
wise if  the  money  had  been  sent  imme- 


diately upon  receipt  of  the  attorney's 
letter. —  When  payment  is  to  be  made 
by  letter,  care  sh(5uld  be  taken  that  the 
letter  is  properly  directed,  or  it  will  not 
discharge  the  debtor.  Thus  in  Walter 
V.  Haynes,  Ey.  &  M.  149,  a  letter  was 
put  into  the  office  directed  to  "  Mr. 
Haynes,  Bristol,"  and  this  was  held  to 
be  insufficient.  And,  per  Abbott,  C.  J. : 
"  Where  a  letter  fully  and  particularly 
directed  to  a  person  at  his  usual  place 
of  residence  is  proved  to  have  been  put 
into  the  post-office,  this  is  equivalent  to 
proof  of  a  delivery  into  the  hands  of 
that  person ;  because  it  is  a  safe  and 
reasonable  presumption  that  it  reaches 
its  destination  ;  but  where  a  letter  is 
addressed  generally  to  A.  B.  at  a  large 
town,  as  in  the  present  case,  it  is  not  to 
be  absolutely  presumed,  from  the  fact 
of  its  having  been  put  into  the  post- 
office,  that  it  was  ever  received  by  the 
party  for  whom  it  was  intended.  The 
name  may  be  unknown  at  the  post- 
office,  or  if  the  name  be  known,  there 
may  be  several  persons  to  whom  so  ge- 
neral an  address  would  apply.  It  is 
therefore  always  necessary,  in  the  latter 
case,  to  give  some  further  evidence  to 
show  that  the  letter  did  in  fact  come  to 
the  hands  of  the  person  for  whom  it 
was  intended."  See  also  Gordon  v. 
Strange,  1  Exch.  477.  So  in  the  case 
of  Hawkins  v.  Rutt,  Peake,  186,  Lord 
Kenyan  ruled  that  a  person  remitting  mo- 
ney by  the  post  should  deliver  the  letter 
at  the  general  post-office,  or  at  a  re- 
ceiving house  appointed  by  that  office, 
and  tliat  a  delivery  to  a  bell-man  in  the 
street  was  not  sufficient. 

(d)  Snow  V.  Perry,  9  Pick.  542 ;  War- 
ren V.  Mains,  7  Johns.  476  ;  Wheeler  v. 
Kraggs,  8  Ohio,  169;  Hoyt  v.  Byrnes, 
2  Fairf  47.5  ;  Tilcy  v.  Courtier,  2  Cr.  & 
J.  16,  n. ;  Wright  v.  Reed,  3  T.  R.  534  ; 
Ball  r.  Stanley,  5  Yerger,  199;  Pol- 
gloss  V.  Oliver,  2  Cr.  &  J.  15  ;  Brown 


VOL.  II. 


12 


134 


THE  LAW   OF   CONTRACTS. 


[part  II. 


mand  specie,  (e)  If  the  bills  are  forged,  both  in  England 
and  in  this  country,  the  payee  may  treat  them  as  a  nullity, 
for  such  bills  are  not  what  they  purport  to  be.  (f)  But  if 
the  bills  are  true  and  genuine,  the  responsibility  of  the  sol- 
vency of  the  bank  would  seem  from  some  cases  to  rest  upon 
the  jiayee.  (s^)  But  if  the  debtor  knew  of  the  insolvency, 
and  did  not  disclose  it,  or  if  he  might  have  known  it,  and 
his  ignorance  was  the  result  of  his  negligence,  he  certainly 
is  not  discharged  by  such  payment,  (h)  And  the  majority 
of  our  cases  appear  to  take  the  ground  that  where  bills  of  a 
bank  that  has  failed  are  paid  and  received  in  ignorance  of 
such  failure,  the  loss  falls  on  the  party  paying ;  putting  such 
bills  on  the  same  footing  as  forged  bills,  and  as  equally  a 
nullity,  (i)     But  if  such  a  rule  were  adopted,  it  would  un- 


V.  Saul,  4  Esp.  267  ;  Noe  v.  Hodges,  3 
Humph.  162  ;  Seawell  v.  Henry,  6  Ala. 
226. 

(e)  Coxe  V.  State  Bank,  3  Halst.  72  ; 
Moodv?.-.Mahurin,4N.  H.  296  ;  Donald- 
son V.  Benton,  4  Dev.  &  Bat.  435.  And 
a  legal  tender  cannot  bo  made  in  cop- 
per cents  under  the  Constitution  of  the 
United  States.  M'Clarin  v.  Nesbit,  2 
N.  &M'Cord,  519. 

( /■)  United  States  Bank  v.  Bank  of 
Georgia,  10  Wheat.  333 ;  Markle  v. 
Hatfield,  2  Johns.  455  ;  Thomas  v. 
Todd.  6  Hill,  340 ;  Hargrave  v.  Dusen- 
berry,  2  Hawks,  326 ;  Anderson  v.  Haw- 
kins, 3  Hawks,  568;  Tindall  v.  The 
Korthwestern  Bank,  7  Leigh,  617  ; 
Mudd  I'.  Reeves,  2  Uarr.  &  Johns.  368 ; 
Wilson  V.  Alexander,  3  Scam.  392  ; 
Eagle  Bank  v.  Smith,  5  Conn.  71  ; 
Young  V.  Adams,  6  Mass.  182;  Sims 
V.  Clarke,  11  111.  137;  Ramsdale  v. 
Horton,  3  Barr,  330  ;  Keene  v.  Thomp- 
son, 4  Gill  &  Johns.  463.  See  also 
ante,  vol.  1,  p.  220.  But  such  forged 
notes  (and  the  same  applies  to  forged 
coin)  must  be  returned  by  the  receiver 
in  a  reasonable  time,  or  he  must  bear 
the  loss.  Pindall  ?;.  The  Northwestern 
Bank,  7  Leigli,  617  ;  Sims  v.  Clarke, 
11  III.  137.  But  payment  made  to  a 
bank,  bond  Jidn,  in  its  own  notes,  which 
are  received  as  genuine,  but  afterwards 
ascertained  to  be  forged,  is  good,  and 
the  bank  must  bear  the  loss.  See  ante, 
vol.  1,  p.  220.  This  .seems  to  be  on  the 
ground  that  the  bank,  or  its  officers, 
having  superior  means  of  determining 


the  genuineness  of  their  own  bills,  are 
guilty  of  negligence  in  receiving  them 
without  examination.  —  But  payment 
to  a  bank  by  its  own  notes,  which  have 
been  stolen  from  such  bank,  is  no  pay- 
ment. State  Bank  v.  Welles,  3  Pick.  394 . 

((j)  LowrcU  V.  Morrell,  2  Porter,  280 ; 
Bayard  v.  Shunk,  1  Watts  &  Serg.  92 ; 
Scruggs  V.  Gass,  8  Yerg.  175.  Perhaps 
these  cases  rest  upon  the  ground  that 
the  identical  bills  given  and  received 
were  received  as  payment,  per  se,  whe- 
ther they  were  good  or  bad.  Possibly 
also,  there  may  be  a  difference  between 
bills  received  in  payment  of  an  antece- 
dent debt  and  bills  passed  in  payment 
at  the  time  of  a  purchase.  In  the  latter 
case,  perhaps,  the  doctrine  of  caveat 
emptor  applies  to  tlie  receiver  of  the 
bills,  as  well  as  to  the  purchaser  of  the 
goods.     Sed  quare. 

(h)  See  Commonwealth  v.  Stone,  4 
Met.  43. 

(i)  Wainwright  v.  "Webster,  11  Verm. 
576  ;  Gilraan  v.  Peck,  Id.  516;  Fogg  v. 
Sawyer,  9  N.  H.  365  ;  Erontier  Bank  v. 
Morse,  22  Maine,  88  ;  Lightbody  v.  On- 
tario Bank,  11  Wend.  1,  13  Wend.  101. 
See  also  ante,  vol.  1,  p.  220.  In  Tim- 
mis  V.  Gibbins,  14  Eng.  Law  &  Eq.  64, 
M.  W.  deposited  certain  country  bank- 
notes, payable  in  London,  representing 
.£80  in  value,  with  a  banking  com])any, 
and  received  the  following  memoran- 
dum, signed  by  the  manager:  —  "Re- 
ceived of  M.  W.  ,C80,  for  which  we  are 
accountable.  .£80,  at  3  per  cent,  inte- 
rest, with  fourteen  days  notice."    The 


en.  III.] 


DEFENCES. 


135 


doubtedly  be  so  far  qualified,  that  where  both  parties  were 
entirely  and  equally  ignorant,  and  the  creditors  by  receiving 
and  retaining  the  bills  without  notice,  deprived  the  debtor  of 
any  remedy  or  indemnity  he  might  have,  the  debtor  is  then 
discharged,  (j) 

5.   0/  payment  by  check. 

Payment  is  also  often  made  by  the  debtor's  check  upon  a 
bank.  A  check  is  a  draft,  and  the  law  of  bills  and  notes  is 
generally  applicable  to  it.  If  given  in  the  ordinary  course 
of  business,  and  unattended  by  especial  circumstances,  it  is 
not  presumed  to  be  received  as  absolute  payment,  even  if 
the  drawer  have  funds  in  the  bank.  The  holder  is  not  bound 
by  receiving  it,  but  may  treat  it  as  a  nullity  if  he  derives  no 
benefit  from  it,  provided  he  has  been  guilty  of  no  negligence 
which  has  caused  an  injury  to  the  drawer,  (k)  Nor  is  it 
necessary  to  preserve  the  payee's  rights  that  it  should  be 
presented  on   the  day  on  which  it  is  received,  (l)     And  if 


notes  were  sent  on  the  same  evening  by 
post  to  the  London  agents  of  the  bank- 
ing company,  and  were  presented  on 
the  next  day,  and  refused  payment. 
They  were  transmitted  by  that  night's 
post  to  the  banking  company,  who  on 
the  following  day  gave  notice  of  dis- 
honor to  M.  W.,  and  tendered  to  him 
the  notes,  which  he  refused.  It  turned 
out  that  the  bank  which  had  issued 
the  notes  had  stopped  payment  upon 
the  day  when  M.  W.  made  the  deposit 
with  the  banking  company,  but  that 
neither  M.  W.  nor  the  company  were 
then  aware  of  this.  It  was  held  that, 
under  the  above  circumstances,  M.  W. 
could  not  maintain  an  action,  either  for 
money  lent,  or  for  money  had  and  re- 
ceived, against  the  banking  company. 

(  /)  Thus,  where  a  banking  company 
paid  notes,  on  which  the  name  of  the 
president  had  been  forged,  and  neglect- 
ed for  fifteen  days  to  return  them,  it 
was  held  that  they  had  lost  their  reme- 
dy against  the  person  from  whom  the 
notes  had  been  received.  Gloucester 
Bank  v.  Salem  Bank,  17  Mass.  33. 

(k)  Cromwell  v.  Lovctt,  1  HalL  56. 
The  holder  of  the  check  in  such  a  case 


becomes  the  agent  of  the  drawer  to  col- 
lect the  money.  And  certainly  if  the 
check  is  conditional,  as  if  it  is  stated  to 
be  for  the  "balance  due"  the  creditor, 
this  would  be  no  payment,  and  the  cre- 
ditor need  not  return  it  before  com- 
mencing suit  on  the  original  cause  of 
action.  Hough  v.  May,  4  Ad.  &  Ell. 
954.  And  if  a  creditor  is  offered  either 
cash,  in  payment  of  his  debt,  or  a  check 
of  the  debtor's  agent,  and  he  prefers  the 
latter,  this  does  not  discharge  the  debt 
if  the  check  is  not  paid  ;  although  such 
agent  afterwards  fails  with  a  large  ba- 
lance of  the  debtor's  funds  in  his  hands  ; 
for  the  check  of  the  agent  is  consi- 
dered, in  such  a  case,  as  the  check  of 
the  principal  debtor.  Everett  v.  Col- 
lins, 2  Campb.  515.  See  also  Tapley 
V.  Martens,  S  T.  R.  451  ;  Bolton  v. 
Richards,  6  T.  R.  139  ;  Brown  v.  Kew- 
ley,  2  B.  &  P.  518. 

(/)  The  Merchants  Bank  v.  Spicer,  6 
Wend.  443 ;  Robson  v.  Bennett,  2 
Taunt.  396  ;  Richford  v.  Ridge,  2 
Campb.  .537  ;  Gough  v.  Staats,  13 
Wend.  549.  Checks  are  considered  as 
inland  bills  of  exchange,  and  the  holder 
must  use  the  same  diligence  in  present- 


136  THE  LAW  OF  CONTRACTS.  [PART  II. 

drawn  on  a  bank  in  which  tlic  drawer  has  no  funds,  it  need 
not  be  presented  at  all  in  order  to  sustain  an  action  upon 
it.  (m)  The  drawing  of  such  a  check  knowingly  is  a  fraud, 
and  deprives  the  drawer  of  all  right  of  presentation  or  de- 
mand. 


C.  Of paijmcnt  by  note. 

Payment  is  also  often  made  by  the  debtor's  giving  his 
own  negotiable  promissory  note  for  the  amount.  In  Massa- 
chusetts, such  note  is  said  in  some  cases  to  be  an  absolute 
payment  and  a  discharge  of  the  debt,  (n)  It  is  said  that 
this  rule  has  prevailed  in  that  State  from  colonial  times ;  and 
it  rests  upon  the  danger  which  the  promisor  would  be  under 
of  being  obliged  to  pay  the  note  to  an  innocent  indorsee, 
after  he  had  paid  the  sum  due  on  a  suit  brought  by  his  cre- 
ditor on  the  original  contract.  But  most  of  the  cases  in 
Massachusetts  treat  it  only  as  a  presumption  of  payment,  in 
the  absence  of  circumstances  going  to  show  an  opposite  in- 
tention, (o)  And  the  same  rule  is  recognized  in  Maine,  {p) 
But  even  in  this  the  law  in  those  States  differs  from  the  rule 
as  held  in  the  courts  of  the  United  States,  and  of  the  State 
courts  generally.  There  it  is  held  that  a  negotiable  promis- 
sory note  is  not  payment,  unless  circumstances  show  that 
such  was  the  intention  of  the  parties,  {q) 

ing  them  for  payment  as  the  holder  of  payment.     Curtis  v.  Hubbard,  9  Mete, 

such  bill.   J/arc^,  J.,  in  Bank  V.  Spiccr,  328.     And  see  Thurston  v.  Blanchard, 

6  Wend.  443.  22  Pick.  18;  Mellcdge  v.  Boston  Iron 

(»))  Franklin  r.  Vanderpool.  1  Hall,  Company,  (not  yet  reported.) 
78.  (/))  Varneri;.  Nobleborough,  2  Greenl. 

(n)  Thacher  v.   Dinsmore,   8    Mass.  (Bennett's  ed.)  121,  and  note  a;  Des- 

299  ;  Whitcomb  v.  Williams,  4  Tick.  228.  cadillas  v.  Harris,  8  Greenl.  298 ;  Ncw- 

(o)  Watkins   v.    Hill,   8    Tick.    522;  all  v.  Ilussey,  18  Maine,  349;  Bangor 

Reed  u.  Upton,  10  Id.  .'J2.5  ;  ]\Ianeely  r.  r.  Warren,  34  Maine,  324;  Fowler  v. 

McGce,  6  Mass.  143;  Wood !'.  Bodwcll,  Ludwig,   Id.   455;  Shumway  v.   Reed, 

12  Pick.  208;  Ilslcy  v.  Jewett,  2  Mete.  Id.    560;  Gilmore   r.   Biissey,  3  Fairf. 

168.     This   presumption  is   but  prima  418;   Comstock   r.    Smitii,   23    Maine, 

facie,  and  may  be  rebutted  by  proof  of  202.     But   this   rule   never   applies   to 

a   difi'crcnt  intent.     Butts   v.   Dean,  2  notes   not  negotiable.     Trustees,  &c.  v. 

Mete.    7G.     And   the   fact   that  taking  Kcndrick,  3    Fairf.   381  ;    Edmond   v. 

such   note  as  jjayment  -would   deprive  Caldwell,  15  Maine,  340. 
the  party  taking  it  of  a  substantial  be-         (7)  Peter   v.   Beverly,    10  Pet.  5G7  ; 

netit,  or  where  he  has  other  .security  for  Shechy  v.  Mandcvillc,  G  Cranch,  253  ; 

the  payment,  lias  a  strong  tendency  to  Wallace  v.  Agry,  4  Mason,  33G ;  Van 

show  that  the  note  was  not  intended  as  Ostrand   v.  Keed,  1  Wend.  424  ;   Bur- 


CH.  III.]  DEFENCES.  137 


7,   Of  payment  by  delegation. 

Payment  may  be  made  by  an  arrangement  whereby  a  cre- 
dit is  given  or  funds  supplied  by  a  third  party  to  the  creditor, 
at  the  instance  of  the  debtor.  But  such  an  arrangement 
must  be  carried  into  actual  effect  to  have  all  the  force  of  pay- 
ment ;  and,  in  general,  it  may  be  compared  with  the  delega- 
tion of  the  civil  law.  Thus,  where  a  debtor  directed  his 
bankers  to  place  to  the  credit  of  the  creditor,  who  was  also 
a  customer  of  the  bankers,  such  a  sum  as  would  be  equal  to 
a  bill  at  one  month,  and  the  bankers  agreed  so  to  do,  and  so 
said  to  the  creditor  who  assented  to  the  arrangement,  and 
the  bankers  became  bankrupt  before  the  day  on  which  the 
credit  was  to  be  given,  this  was  held  to  be  no  payment,  and 
the  creditor  was  permitted  to  maintain  an  action  against  the 
original  debtor  on  the  original  liability,  (r)  It  would  doubt- 
less have  been  otherwise  had  there  been  a  remittance  or  actual 
transfer  on  account  of  the  debt ;  for  it  seems  to  be  settled  that 
the  actual  transfer  of  the  amount  of  the  debt  in  a  banker's 
books,  from  the  debtor  to  the  creditor,  with  the  knowledge  and 
assent  of  both,  is  equivalent  to  payment,  (s)  Where  bankers 
receive  funds  from  a   debtor,  to  be   by  them    transmitted 

dick  V.  Green,  15  Johns.  247;  Hughes  that  this  transfer  amounted,  under  the 

V.  Wheeler,  8  Cow.  77  ;  Booth  v.  Smith,  circumstances,  to  payment.     And  this 

3  "Wend.   66 ;  Bill  v.  Porter,  9  Conn,  ruling  was  sustained  by  the  Court  of 

23  ;  Davidson  r.   Bridgeport,    8  Conn.  Common  Fleas  on  a  motion  for  a  new 

472  ;  Elliott  v.  Green,  2  N.  H.  525.  trial.     Best,  C.  J.,  said  :  —  "  The  learn- 

(r)  Pedder  v.    Watt,   Peake's   Add.  ed  Sergeant  was  right  in  esteeming  this 

Cas.  41.  a    payment.*  The   plaintiff  had   made 

(s)  Eyles  v.  Ellis,  4  Bing.  112.     This  the  Maidstone  bankers  his  agents,  and 

was  an  action  of  covenant  for  rent  due  had  authorized  them  to  receive  the  mo- 

from  the  defendant  to  the  plaintiff.     At  ney  due  from  the  defendant.     Was  it 

the   trial   before  Onslow,    Sergt,  it  ap-  then  paid,  or  was  that  done  which  was 

peared  that  the   plaintiff,   in   October,  equivalent  to  payment  ?     At  first,  not ; 

authorized  the  defendant  to  pay  in  at  a  but  on   the   8th   a   sum   was   actually 

certain  banker's  the  amount  due.    Ow-  placed  to  the  plaintiff's  account;  and 

ing  to  a  mistake  it  was  not  then  paid ;  though   no  money  was  transferred  in 

but  the  defendant,  who  kept  an  account  specie,   that   was   an    acknowledgment 

with  the  same  bankers,  transferred  the  from  the  bankers  that  they  had  received 

sum  to  the  plaintiff's  credit  on  Friday,  the  amount  from  Ellis.     The  plaintiff 

the   9th   of  December.    The  plaintiff,  might  then  have  drawn  for  it,  and  the 

being  at  a  distance,  did  not  receive  no-  bankers   could    not  have    refused    his 

tice  of  this  transfer  till  the  Sunday  fol-  draft."     See  also  Bodenham  v.  Purchas, 

lowing,  and  on  the  Saturday  the  bank-  2  B.  &  Aid.  39,  and  ante,  vol.  1,  pp. 

ers  failed.  The  learned  sergeant  thought  187-191. 

12* 


138  THE   LAW   OF    CONTRACTS.  [rART  II. 

through  their  foreign  correspondents  to  a  foreign  creditor,  it 
seems  that  the  bankers  are  not  liable  if  they  pass  it  to  the 
credit  of  their  foreign  correspondents,  and  give  notice  to 
them  to  pay  it  over  to  the  creditor,  and  afterwards  accept 
bills  drawn  on  them  by  the  foreign  correspondents,  although 
the  foreign  correspondents  become  bankrupts  before  the  no- 
tice reaches  them,  artd  do  not  transmit  the  money  to  the  cre- 
ditor. (/)  The  rule  seems  to  rest  on  the  fact  that  the  bank- 
ers had  done  all  that  was  to  be  expected  of  them,  and  all 
that  they  had  undertaken  to  do. 


8.  Of  stake-holders,  and  wagers. 

Payment  is  sometimes  made  to  a  third  party,  to  hold  until 
some  question  be  determined,  or  some  right  ascertained. 
The  third  party  is  then  a  stake-holder,  and  questions  have 
arisen  as  to  his  rights  and  duties,  and  as  to  the  rights  of  the 
several  parties  claiming  the  money.  If  it  be  deposited  with 
him  to  abide  the  result  of  a  wager,  it  seems  that  where  the 
wager  is  legal,  neither  party  to  it  can  claim  the  money  until 
the  wager  is  determined,  and  then  he  is  bound  to  pay  it  to 
the  winning  party,  {ii)     That  is,  neither  party  can  rescind 

(t)  M'Carthy  v.  Colvin,  9  Ad.  &  Ell.  asked,  "  What  -will  you   now  lay  that 

607.  you  conversed  with  Lord  Kensinsiton  1 " 

(u)  Brandon  v.  Hibbert,  4  Campb.  The  plaintiff  answered,  "80  guineas  to 
37.  There  the  plaintiff  laid  a  wager  10."  The  money  was  accordingly  dc- 
with  a  butcher  that  another  butcher  posited  in  the  hands  of  the  defendant, 
would  sell  him  meat  at  a  certain  price,  as  a  stake-holder.  Upon  whicli  Porter 
The  wager  was  aciceptcd,  «nd  the  mo-  exclaimed,  "  Now  I  have  you  ;  I  have 
ncy  placed  in  tlie  defendant's  hands,  made  inquiries,  and  the  person  ycfu  con- 
and  the  decision  of  the  question  was  versed  with  was  Lord  Kingston,  not 
left  to  him,  and  he  decided  against  the  Lord  Kensington."  The  plaintiff  own- 
plaintiff,  who  then  brought  this  action  ed  his  mistake ;  but  said  he  iiad  been 
te  recover  his  deposit,  but  Dampicr,  J.,  imposed  upon,  and  gave  notice  to  the 
was  of  opinion  that  the  action  could  not  defendant  not  to  pay  over  the  money, 
be  maintained,  and  directed  a  nonsuit.  This  action  was  brought  to  recover 
In  Brand  v.  Collctt,  Id.  1.57,  the  plain-  back  the  deposit  of  eighty  guineas,  on 
tiff,  in  the  presence  of  the  defendant  the  ground  tliat  it  was  a  bubl)le  bet. 
and  one  Porter,  boasted  of  having  con-  But  per  ■Gilbs,  C.  J.:  —  "I  think  the 
versed  with  Lord  Kensington.  Porter  action  cannot  be  maintained.  Tliere  is 
asserted  that  the  plaintiff  had  never  nothing  illegal  in  the  wager.  Nor  can 
spoken  to  Lord  Kensington  in  his  life,  it  be  said  tliat  the  point  was  certain  as 
A  bet  was  talked  of  upon  the  subject,  to  one  party,  and  contingent  as  to  the 
but  none  was  then  laid.  Next  morning  other.  The  plaintiff  relied  ujion  his 
the  parties   again   met,    when    Porter  own  observation.  Porter  upon  the  in- 


en.  III.]  *  DEFENCES.  139 

the  agreement ;  although  Lord  Ellenboroug-h  said  otherwise, 
in  one  case,  (v)  If  the  wager  be  illegal,  either  party  may 
claim  the  money.  If  the  loser  claim  money  he  has  deposit- 
ed on  an  illegal  wager,  and  claim  it  even  after  the  wager  is 
decided  against  him,  but  before  it  is  actually  paid  over,  the 
stake-holder  is  bound  to  return  it  to  him.  (w)  But  although 
the  wager  be  illegal,  if  the  stake-holder  has  paid  it  over  to 
the  winner,  before  notice  or  demand  against  him  by  the 
loser,  he  is  exonerated,  (x)  When  the  event  has  been  de- 
termined, it  is  said  that  the  winner  may  bring  an  action  for 
the  money  against  the  stake-holder,  without  giving  him  no- 
tice of  the  happening  of  the  event,  (y) 

The  statute  8  &  9  Vict.,  ch.  109,  s.  18,  makes  all  wagers, 
or  contracts  or  agreements  by  way  of  gaming  or  wagering, 
null  and  void,  and  provides  that  no  suit  shall  be  maintained 
for  the  recovery  of  any  thing  deposited  to  abide  the  event  of 
any  wager.  Many  of  the  courts  of  this  country  have  viewed 
wagers  as  entitled  to  no  favor ;  (z)  but  where  they  are  in 
any  degree  legal  contracts,  they  would  doubtless  be  governed 
by  the  rules  above  stated.        • 

An  auctioneer  is  often  made  a  stake-holder ;  and  where  he 
receives  a  deposit  from  a  purchaser,  to  be  paid  over  to  the 
seller,  if  a  good  title  to  the  property  be  made  out,  and  in 
default  thereof  to  be  returned  to  the  purchaser,  he  cannot 
return  it  to  the  purchaser  on  his  demand,  without  such 
default.     But  on  default,  or  a  rescinding  or   abandonment 

formation  he  bad  received.   The  former  er."  This  position,  however,  was  strong- 
was  the  more  confident  of  the  two  ;  and  ly  doiihted  in  the   suhscqiient  case  of 
either  mi^ht  have  turned  out   to  have  Marryat  v.  Broderick,  2  M.  &  W.  3G9. 
been  mistaken."  (iv)  Cotton  v.  Thurland,  5  T.  R.  405 ; 
(v)  Eltham  v.  Kingsman,  1  B.  &  Akl.  Smith  v.  Bickmore,4  Taunt.  474  ;  Bate 
683.      This    was   an   action   against   a  v.  Cartwright,  7  Price,  540 ;  Ilastelow 
stakc-hoklcr  to  recover  back  a  Avager.  v.  Jackson,  8  B.  &  C.  221  ;  Hodson  v. 
Lord    EUenborough    said  :  —  "I    think  Terrill,  1  Cr.  «&.  Mees.  797. 
there  is  no  distinction  between  the  situ-         (x)  Perkins  v.  Eaton,  3  N.  H.  152  ; 
ation  of  an  arbitrator  and  that  of  the  Ilowson  v.  Hancock,  8  T.  R.  575 ;  Mc- 
prcscnt  defendant,  for  he  is  to  decide  Cullum  ;;.  Gourlay,  8  Johns.  147  ;  Liv- 
who  is  the  winner  and  wlio  is  tlie  loser  ingston  r.  Wootaii,  1  N.  &  McC!.  178. 
of  the  wager,  and  what  is  to  l)e  done         (ij)  Duncan  v.  Cafe.  2  M.  &  W.  244. 
with  tlie  stake  deposited  in  his  hand.         (z)  Perkins  v.  Eaton,  3  N.  II.  152  5 
Now  an  arbitrator's  authority  before  he  Bunn  r.  Riker,  4  Johns.  426  ;  McAllis- 
has  made  his  award  is  clearly  counter-  ler  v.  HotTman,  16  S.  &  R.  147  ;  ISIcAl- 
mandable  ;  and  here,  before   there  has  lister  r.  Gallaher,  3  Penn.  468  ;  Wheeler 
been  a  decision,  the  party  has  counter-  v.  Sjjencer,  15  Conn.  28. 
manded  tlic  authority  of  the  stake-hold- 


140 


THE   LAW   OF    CONTRACTS. 


[part  II. 


of  the  contract,  the  auctioneer  is  bound  to  return  it  to 
the  purchaser  on  his  demand,  and  if  he  have  paid  it  to 
the  owner  of  the  property,  he  has  done  so  in  his  own 
wrong,  and  must  refund  it  to  the  depositor,  (a)  If  one  de- 
posits money  in  the  hands  of  a  stake-holder,  to  be  paid  to  a 
creditor  when  his  claim  against  the  depositor  shall  be  ascer- 
tained, and  the  stake-holder  pays  this  money  to  the  creditor 
on  his  giving  an  indemnity,  before  the  claim  is  ascertained, 
without  the  assent  of  the  depositor,  it  is  said  that  such  de- 
positor may  maintain  an  action  against  the  stake-holder  for 
money  had  and  received,  without  any  reference  to  the  demand 
of  the  creditor,  (b)  But  if  the  check  of  the  depositor  be 
given  to  the  stake-holder,  the  mere  fact  that  he  cashes  it  and 
holds  the  money  is  not  such  wrongdoing  as  makes  him  lia- 
ble to  be  sued  for  the  amount,  (c) 


9.  Of  appropriation  of  payments. 

There  are  many  cases  relating  to  the  appropriation  of  a 
payment,  where  the  creditor%as  distinct  accounts  against 
the  debtor.  In  Cremer  v.  Higginson,  (d)  Mr.  Justice  Stori/ 
lays  down  with  much  precision  the  general  rules  governing 
these  cases.  First,  a  debtor  who  owes  his  creditor  money 
on  distinct  accounts  may  direct  his  payments  to  be  applied 


(a)  Edwards  v.  Hodding,  5  Taunt. 
815.  In  Duncan  v.  Cafe,  2  M.  &  W. 
244,  the  plaintiiF  having  deposited  a 
sum  with  the  auctioneer,  until  a  good 
title  was  made  out,  was  allowed  to  re- 
cover the  deposit,  without  notice  to  the 
auctioneer  that  the  contract  had  been 
rescinded  by  the  parties.  And  sec,  to 
the  same  etFect,  Gray  v.  Gutteridgc,  1 
Man.  &  Kyi.  614. 

(6)  Cowling  V.  Beachum,  7  Moore,  465. 
In  this  case  the  plaintiff  had  employ- 
ed one  Langdon,  an  auctioneer,  to  sell 
an  estate,  and  disputed  the  sum  charged 
by  him  for  liis  expenses  ;  whereupon  it 
was  agreed  that  tiie  amount  shouhl  be 
deposited  with  the  defendant,  until  it 
should  be  ascertained  whether  tlie  auc- 
tioneer was  entitled  to  the  whole  of  his 
demand  or  not.  The  defendant  having 
paid  over  the  amount  so  deposited  to 
the  auctioneer  on  receiving  his  indem- 


nity, without  the  knowledge  or  concur- 
rence of  the  plaintiff,  it  was  held  that 
the  latter  was  entitled  to  recover  it  back 
in  an  action  for  money  had  and  re- 
ceived. And,  per  Burrough,  J.,  '•  The 
sum  in  question  was  deposited  by  the 
plaintiff  with  the  defendant  for  an  ex- 
press purpose ;  it  should,  therefore, 
have  remained  in  his  hands  until  it  was 
ascertained  to  what  remuneration  Lang- 
don was  entitled  for  selling  the  estate 
in  question.  The  payment  of  it  by  him 
to  Langdon,  on  his  indemnity,  was  a 
wrongful  act,  and  a  breach  of  the  trust 
reposed  in  the  defendant  by  the  ])lain- 
tiff,  and  for  which  the  sum  in  question 
was  deposited  in  iiis  hands,  and  wiiich 
he  cannot  now  possibly  comply  with,  in 
consequence  of  his  own  act." 

(c)  Wilkinson  v.  Godcfroy,  9  Ad.  & 
El.  536. 

((/)  1  Mason,  338. 


CII.  III.] 


DEFENCES. 


141 


to  cither,  as  he  pleases.  Second,  if  the  debtor  makes  no 
such  appropriation,  the  creditor  may  apply  the  money  as  he 
pleases.  Third,  if  neither  party  makes  a  specific  appropria- 
tion of  the  money,  the  law  will  appropriate  it  as  the  justice 
and  equity  of  the  case  may  require.  These  rules  seem  to 
apply  although  one  of  the  debts  be  due  on  specialty  and  the 
other  on  simple  contract,  (e)  If  one  owe  money  in  respect 
of  a  debt  contracted  by  his  wife  before  marriage,  and  also  a 
debt  of  his  own,  and  pay  money  generally,  the  creditor  may 
apply  the  payment  to  either  demand.  (/)  And  if  one  of  the 
debts  be  barred  by  the  statute  of  limitations,  and  the  other 
not,  and  the  money  be  paid  generally,  the  creditor  may  ap- 
ply the  payment  to  the  debt  that  is  barred  ;  (g-)  but  he  may 
not  make  use  of  this  payment  to  revive  the  debt  and  remove 
the  bar  of  the  statute,  (h) 

It  is  not  necessary  that  the  appropriation  of  the  payment 
should  be  made  by  an  express  declaration  of  the  debtor ;  for 


(e)  Brazier  v.  Bryant,  2  Dowl.  P.  C. 
477;  Chitty  v.  Naish,  Id.  511;  The 
Mayor,  &c.  of  Alexandria  v.  Patten,  4 
Cranch,  317;  Peters  v.  Anderson,  5 
Taunt.  596  ;  Hamilton  v.  Benbury,  2 
Haywood,  385. 

(/)  Goddard  v.  Cox,  2  Strange,  1194. 
In  this  case  the  defendantwas  indebted  to 
the  plaintiff  on  account  of  debts  con- 
tracted by  his  wife  dum  sola,  and  also 
on  account  of  debts  contracted  by  him- 
self. His  wife  was  also  indebted  to  the 
plaintiff  as  executrix.  The  defendant 
made  payments  to  the  plaintiff  on  ac- 
count generally,  without  directing  what 
debts  they  should  be  applied  to.  Held, 
that  the  plaintiff  might  elect  whether  to 
apply  the  payments  to  discharge  the 
debts  contracted  by  the  defendant  him- 
self, or  those  contracted  by  his  wife  dum 
sola,  but  could  not  apply  them  to  dis- 
charge the  debts  due  from  the  wife  as 
executrix. 

(-7)  Mills  V.  Fowkes,  5  Bing.  N.  C. 
455.  In  this  case  Tindal,  C.  J.,  said  : 
"  The  civil  law,  it  is  said,  applies  the 
payment  to  the  more  burdensome  of 
two  debts,  where  one  is  more  burden- 
some than  the  other  ;  but  I  do  not  think 
that  such  is  the  rule  of  our  law.  Ac- 
cording to  the  law  of  England,  the 
debtor  may,  in  the  first  instance,  appro- 
priate the  payment ;  solvitur  in  modum 


solventis;  if  he  omit  to  do  so,  the  cre- 
ditor may  make  the  appropriation  ;  re- 
cipitur  in  modum  recipientis ;  but  if  nei- 
ther make  any  appropriation,  the  law 
appropriates  the  payment  to  the  earlier 
debt."  See  also  Williams  v.  Griffith,  5 
M.  &  W.  300 ;  Logan  v.  Mason,  6  W. 
&  S.  9.  But  if  a  creditor  has  several 
claims,  some  of  which  are  illegal,  and 
so  not  by  law  recoverable,  he  cannot 
appropriate  a  genei'al  payment  to  such  ' 
illegal  claims.  Caldwell  v.  Wentworth, 
UN.  H.  431  ;  Wright  v.  Laing,  3  B. 
&  C.  165 ;  Arnold  v.  The  Mayor,  &c.  of 
Poole,  4  M.  &  Gr.  860 ;  Ex  parte  Ran- 
dleson,  2  Dea.  &  Chit.  534.  But  see, 
contra,  Philpott  v.  Jones,  2  Ad.  &  El. 
41  ;  Cruickshanks  v.  Rose,  1  Mood.  & 
Rob.  100;  Treadwell  v.  Moore,  34 
Maine,  112. 

(h)  Mills  V.  Fowkes,  5  Bing.  N.  C. 
455.  But  the  case  of  Ayer  v.  Hawkins, 
19  Verm.  26,  shows  that  a  creditor 
having  several  notes  against  his  debtor, 
all  of  which  are  barred  by  the  statute 
of  limitations,  may  appropriate  a  gene- 
ral payment  of  such  debtor  to  any  one 
of  the  notes,  even  the  largest,  and  re- 
vive that  particular  note,  but  lie  cannot 
distribute  such  general  payment  upon  all 
hia  claims,  and  thus  avoid  the  statute  as 
to  all 


142 


THE   LAW   OF   CONTRACTS. 


PART  ir. 


if  his  intention  and  purpose  can  be  clearly  gathered  from  the 
circumstances  of  the  case,  the  creditor  is  bound  by  it.  (i)  If 
the  debtor,  at  the  time  of  making  a  payment,  makes  also  an 
entry  in  his  own  book,  stating  the  payment  to  be  on  a  par- 
ticular account,  and  shoivs  the  entry  to  the  creditor,  this  is  a 
sufficient  appropriation  by  the  debtor,  [j)  But  the  right  of 
election,  or  appropriation,  is  not  exercised  by  entries  in  the 
books  of  either  party  until  those  entries  are  communicated 
to  the  other  party.  (A:) 

Although  the  payment  be  general,  the  creditor  is  not  al- 
lowed in  all  cases  to  appropriate  the  same.  As  where  he  has 
an  account  against  the  debtor  in  his  own  right,  and  another 
against  him  as  executor,  and  money  is  paid  by  the  debtor 
without  appropriation,  the  creditor  must  apply  it  to  the  per- 
sonal debt  of  the  debtor,  and  not  to  his  debt  as  executor.  (/) 

A  general  payment  must  be  applied  to  a  prior  legal  debt, 
in  preference  to  a  subsequent  equitable  claim,  [m)  If  the 
equitable  claim  be  prior,  it  has  been  said  that  it  may  be  pre- 
ferred by  the  creditor ;  (w)  but  this  does  not  seem  to  be  cer- 
tain, (o) 


(/)  The  question  is  always  one  of  in- 
tent, wliich  is  a  question  for  the  jury 
under  all  the  circumstances  of  the  case. 
As  to  what  circumstances  will  be  held 
sufficient  to  warrant  a  finding  of  such 
appropriation  by  the  debtor,  sec  Tay- 
loc  V.  Sandiford,  7  Wheat.  14;  Mitchell 
V.  Dall,  2  Harr.  &  Gill,  159,  4  Gill  & 
Johns.  3G1  ;  Fowke  v.  Bowie,  4  Harr. 
&  Johns.  566 ;  Robert  v-  Garnic,  3 
Gaines,  14  ;  West  Branch  Bank  v. 
Mooreiiead,  5  W.  &  S.  542  ;  Scott  v. 
Fisher,  4  Monr.  387 ;  Stone  v.  Sey- 
mour, 15  Wend.  19  ;  Newmarch  v.  Clay, 
14  East,  339  ;  Shaw  v.  Bicton,  4  B.  & 
C.  715.  If  the  debtor  pay  with  one  in- 
tent, and  the  creditor  receive  with  ano- 
ther, the  intent  of  the  debtor  shall  go- 
vern. Reed  v.  Boardman,  20  Pick. 
441. 

(j)  Frazer  v.  Bunn,  8  C.  &  P.  704. 

(k)  Simpson  v.  Ingham,  2  B.  &  C. 
65. 

(?)  Goddard  v.  Cox,  2  Strange,  1194. 
And  sec  Fowke  v.  Bowie,  4  II.  &  Johns. 
506  ;  Sawyer  v.  Tappan,  14  N.  II.  352. 
But  where  one  debt  is  due  to  the  cre- 


ditor in  his  own  right,  and  another  to 
him  as  trustee  or  agent  for  another,  and 
neither  is  secui-cd,  the  creditor  cannot 
apply  the  whole  of  a  general  payment 
to  his  own  debt,  but  must  ap])ly  it  pro 
rata  to  both  debts ;  for  this  is  a  part  of 
his  duty  as  trustee,  to  take  the  same 
care  of  the  debts  of  his  cestui  que  trust 
as  of  his  own.  See  Scott  v.  Ray,  18 
Pick.  361  ;  Barrett  v.  Lewis,  2  Id.  123  ; 
Cole  V.  Trull,  9  Id.  325. 

(m)  Goddard  v.  Hodges,  1  Cr.  & 
Mecs.  33. 

(n)  Bosanquct  v.  Wray,  6  Taunt. 
597. 

(o)  In  Birch  v.  Tebbutt,  2  Starkie, 
74,  A.  had  certain  bills  of  exchange  .ac- 
cepted by  B.,  and  also  a  mortgage  ex- 
ecuted by  B.  to  a  third  person,  but  of 
which  A.  might  compel  an  assignment 
in  equity  to  himself.  B.  paid  A.  mo- 
ney on  account,  which  A.  received  with- 
out prejudice  to  the  claim  he  might  have 
upon  any  securities.  Lord  Kllenhorough 
held  that  the  money  should  be  applied 
wholly  towards  the  bills  of  exchange, 
and  none  on  the  equitable  claims. 


en.  III.]  DEFENCES.  143 

In  general,  the  creditor's  right  of  appropriation,  springing 
from  the  neglect  or  refusal  of  the  debtor  to  make  such  appro- 
priation, exists  only  where  the  debtor  has  in  fact  an  oppor- 
tunity of  making  it ;  and  not  where  the  payment  was  made 
on  his  account  by  another,  or  in  any  way  which  prevents  or 
impedes  his  exercise  of  the  right  of  election,  (p) 

Several  rules  may  be  gathered  from  the  cases,  by  which 
courts  are  guided  where  the  appropriation  or  application  of 
payments  is  made  by  the  law.  Thus,  the  money  is  applied 
to  the  case  of  the  most  precarious  security,  where  there  is 
nothing  to  control  this  application,  (q)  But  if  one  debt  be 
a  mortgage  debt,  and  the  other  a  simple  account,  it  has  been 
said  the  court  will  apply  the  money  to  the  mortgage  debt  in 
preference,  on  the  ground  that  it  will  be  more  for  the  inte- 
rest of  the  debtor  to  have  this  debt  discharged.  {?•)  And  if 
there  be  two  demands,  of  different  amounts,  and  the  sum 
paid  will  exactly  satisfy  one  of  them,  it  will  be  considered  as 
intended  to  discharge  that  one.  [s)  If  one  of  the  debtor's 
liabilities  be  contingent,  as  where  the  creditor  is  his  indorser 
or  surety,  but  has  not  yet  paid  money  for  him,  the  court  will 
apply  a  general  payment  to  the  certain  debt,  and  will  not 
permit  the  creditor  to  apply  it  to  the  contingent  debt,  (t) 

If  a  partner  in  a  firm  owe  a  private  debt  to  one  who  is 

(p)  Waller  v.  Lacy,  1  Man.  &  Gr.  Dowl.  511  ;  Field  v.  Holland,  supra; 
54.  Here  an  attorney  having  several  Planters  Bank  v.  Stockman,  1  Free- 
demands  against  his  client,  some  of  man's  Ch.  [Miss.]  502;  Hilton  v.  Bur- 
which  were  barred  by  the  statute  of  ley,  2  N.  H.  193;  Jones  v.  Kilgore,  2 
limitations,  and  some  not,  received  from  Rich.  Eq.  64  ;  Moss  v.  Adams,  4  Ired. 
a  third  person  a  sum  of  money  on  be-  Eq.  42 ;  Ramsour  v.  Thomas,  10  Ired. 
half  of  his  client,  and  claimed  the  right  165. 

to  apply  such  sum  to  the  payment  of  (s)  Robert  v.  Garnie,  3  Caines,  14. 

the   earliest  items  in  his  own  account  (t)  Niagara    Bank    v.     Rosevelt,     9 

against   the  client;  but  the  court  held  Cowen,  410;  Newman  y.  Meek.  I   Sm. 

that  he  had  no  such  right.  &   Mar.    Ch.   331  ;    Portland   Bank   v. 

(cj)  Sec  Field  v.  Holland,  6  Cranch,  Brown,  22  Maine,  295.  So  a  general 
8;  Plomer  v.  Long,  1  Starkie,  153;  payment  is  to  be  referred  to  a  debt  due, 
Smithy.  Loyd,  11  Leigh,  512;  Stam-  rather  than  to  one  not  yet  due.  Sey- 
ford  Bank  v.  Benedict,  15  Conn.  438 ;  mour  v.  Sexton,  10  Watts,  255;  Ham- 
Vance  V.  Monroe,  4  Gratt.  53.  mersley  v.  Knowlys,  2  Esp.  666  ;  Bacon 

(r)  Pattison  v.  Hall,  9  Cowen,  747,  v.  Brown,  1   Bibb,  334  ;  Stone  v.  Sey- 

765.     And  sec  Dorsey  v.  Gassaway,  2  mour,   15  Wend.  19;  Baker  v.   Stack- 

Harr.  &  Johns.  402  ;  Gwinn  v.  Whita-  poole,  9  Cow.  420 ;  McDowell   v.  The 

kcr,  1  Harr.  &  Johns.  754  ;  Robinson  I'.  Blackstone    Canal    Co.   5   Mason,    11. 

Doolittle,  12  Verm.  246;  Anonymous,  But  by  express  agreement,  a  payment 

12  Mod.  559.     But  see,  contra,  Anony-  may  be  applied  to  a  debt  not  yet  due. 

mous,  8  Mod.  236 ;  Chitty  v.  Naish,  2  Shaw  v.  Pratt,  22  Pick.  305. 


144 


THE   LAW   OF   CONTRACTS. 


[part  II. 


also  a  creditor  of  the  firm,  and  make  to  this  creditor  a  gene- 
ral payment,  but  of  money  belonging  to  the  firm,  the  pay- 
ment must  be  appropriated  to  the  discharge  of  the  partner- 
ship debt.  (//) 

It  seems  to  be  settled,  that  where  one  of  several  partners 
dies,  the  firm  being  in  debt,  and  the  surviving  partners  con- 
tinue their  dealings  with  a  particular  creditor,  and  the  latter 
blends  his  transactions  with  the  firm  before  and  after  such 
death  together,  the  payments  made  from  time  to  time  by  the 
surviving  partners  must  be  applied  to  the  old  debt,  (v)  It 
will  be  presumed  that  all  the  parties  have  agreed  and  intend 
to  consider  the  whole  transaction  as  continuous,  and  the  en- 
tire account  as  one  account,  (lo)  And  in  general,  the  doc- 
trine of  appropriation,  and  the  right  of  election,  apply  only 
where  the  debts  or  accounts  are  distinct  in  themselves,  and 
are  so  regarded  and  treated  by  the  parties.  Where  the 
whole  may  be  taken  as  one  continuous  account,  payments 
are,  generally,  but  not  universally,  applied  to  the  earlier 
items  of  the  account,  (x) 


(u)  Thompson  v.  Brown,  M.  &  Malk. 
40.  And,  per  Abbott,  C.  J.: — "The 
general  rule  certainly  is,  that  when  mo- 
ney is  paid  generally,  without  any  ap- 
propriation, it  ought  to  be  applied  to 
the  first  items  in  the  account ;  but  the 
rule  is  subject  to  this  qualification,  that 
when  there  are  distinct  demands,  one 
against  persons  in  partnership,  and  ano- 
ther against  one  only  of  the  jjartners,  if 
the  money  ])aid  be  the  money  of  the 
partners,  the  creditor  is  not  at  liberty 
to  api)ly  it  to  the  payment  of  tlic  debt 
of  tlic  individual ;  that  would  be  allow- 
ing the  creditor  to  pay  the  debt  of  one 
person  with  the  money  of  others."  And 
see  Fairchild  w.  Holly,  10  Conn.  175; 
Johnson  v.  Boone,  2  Harring.  172  ; 
Snecd  V.  Weister,  2  A.  K.  Marsh.  277. 

(v)  Per  Baylf'i/,  J.,  in  Simson  v.  Ing- 
ham, 2  B.  &  Cr.  65.  And  see,  to  the 
same  clVect,  Clayton's  case,  (Dcv.ayncs 
r.  Noble)  1  Mer.  529,  604 ;  Timson  v. 
Cooke,  1  Bing.  452  ;  Williams  v.  Raw- 
linson,  4  Id.  71  ;  Bodenham  v.  Purchas, 

2  B.  &  Aid.  ."39  ;    Toulmin  7).  Copland, 

3  Y.  &  Col.  625,  1  West,  164 ;  Smith  v. 
Wiglcy,  3  M.  &  Scott,  174.  But  if  a 
new  account  is  opened  with  tiie  new 
firm,  the  creditor  may  apply  a  general 


payment  to  the  new  account.  Logan 
V.  Mason,  6  Watts  &  Scrg.  9. 

(lu)  Per  Bat/lei/,  J.,  in  Simson  v.  Ing- 
ham, 2  B.  &  Cr.  65. 

(x)  Clayton's  case,  (Dcvaynes  v.  No- 
ble) I  Mer.  529,  609.  This  is  the  lead- 
ing case  upon  this  point.  See  also 
Brooke  v.  Enderby,  2  Br.  &  Bing.  70 ; 
United  States  v.  Kirkpatrick,  9  Wheat. 
720 ;  Jones  v.  United  States,  7  IIow. 
681  ;  Postmaster-General  r.  Furl)cr,  4 
Mason,  333  ;  United  States  v.  Ward- 
well,  5  Mason,  82  ;  Gass  v.  Stinson,  3 
Sumner,  98;  Fairchild  v.  Holly,  10 
Conn.  i75  ;  McKenzie  v.  Nevins,  22 
Maine,  138  ;  United  States  v.  Bradbury, 
Daveis,  146.  See  also  cases  cited  in 
preceding  note.  But  j)ayment  will  not 
be  applied  to  the  earliest  items  in  an 
account,  if  a  difl'ercnt  intention  is  clear- 
ly expressed  by  the  debtor,  or  l)y  both 
parties,  or  where  such  intention  can  be 
gathered  from  the  particular  circum- 
stances of  tlie  case.  See  Taylor  r.  Ky- 
mcr,  3  B.  &  Ad.  320;  llenniker  v. 
Wigg,  4  Q.  B.  792  ;  Capcn  v.  AKlen,  5 
Mete.  268  ;  Dulles  v.  Dc  Forest,  19 
Conn.  191;  AVilson  v.  Hirst,  1  N.  & 
Man.  742. 


en.  III. 


DEFENCES. 


145 


The  due  exercise  of  the  right  of  appropriation  by  the  cre- 
ditor may  often  be  of  great  importance  to  the  surety  of  the 
debtor.  Generally  the  law  favors  the  surety,  especially  if 
his  suretyship  be  not  for  a  previously  existing  debt.  So 
where  one  has  given  security  for  the  payment  for  goods  to 
be  afterwards  supplied  to  his  principal,  and  such  goods  are 
supplied,  aiid  general  payments  made  by  the  principal,  who 
was  otherwise  indebted  to  the  party  supplying  the  goods,  it 
would  be  inferred  in  favor  of  the  surety  that  the  payments 
were  intended  to  be  made  in  liquidation  of  the  account 
which  he  had  guaranteed.  (//)  But  where  an  obligor  makes 
a  general  payment  to  his  obligee,  to  whom  he  is  indebted 
not  only  on  the  bond  but  otherwise,  the  surety  of  the  obligor 
cannot  require  that  the  payment  should  be  applied  to  the 
bond,  unless  aided  by  circumstances  which  show  that  such 
application  was  intended  by  the  obligor,  (z) 


(y)  Marryatts  v.  White,  2  Stark,  101. 
In  tliis  case  a  son-in-law  of  the  defend- 
ant being  indelited  to  the  plaintiff,  and 
wishing  to  obtain  a  farther  credit  for 
some  tlour,  the  defendant  became  his 
surety  by  giving  his  note  to  the  plaintiff, 
but  with  a  stipulation  that  it  should 
operate  as  a  security  for  the  flour  to  be 
delivered,  and  not  for  the  debt  which 
then  existed.  The  term  of  credit  on 
sales  of  flour  was  three  months,  and 
discount  was  allowed  for  earlier  pay- 
ment. After  the  delivery  of  the  flour 
the  son-in-law  made  several  payments 
on  account  generally,  but  upon  all  those 
which  were  made  within  three  months 
from  the  time  the  flour  was  delivered, 
the  usual  discount  was  allowed.  Held, 
that  this  was  evidence  that  all  the  pay- 
ments were  to  go  to  pay  for  the  fiour, 
and  not  to  discharge  the  preexisting 
debt.  And  Lord  Ellenlxjwugh  said,  "  I 
think  that  in  favor  of  a  surety,  such 
payments  are  to  be  considered  as  paid 
on  the  latter  account.  In  some  in- 
stances the  payments  were  immediate, 
and  in  others  Ifcfore  the  time  had  ex- 
pired, within  which  a  discount  was  al- 
lowed ;  ex  pliirimis  clisce  omnes.  Whci'c 
there  is  nothing  to  show  the  animus 
sol  vends,  the  payment  may  certainly  be 
applied  by  the  party  who  receives  the 
money.  The  payment  of  the  exact 
amount  of  goods  previously  supplied  is 
irrefragable  evidence  to  show  that  the 


sum  was  intended  in  payment  of  those 
goods,  and  the  payment  of  sums  with- 
in the  time  allowed  for  discount,  and 
on  which  discount  has  been  allowed, 
affords  a  strong  inference,  in  the  ab- 
sence of  proof  to  the  contrary,  that  it 
is  made  in  relief  of  the  surety."  See 
Kirby  v.  The  Duke  of  Marlborough,  2 
M.  &  S.  IS. 

(r)  Plomer  i'.  Long,  1  Stark.  153.  lu 
Martin  v.  Brecknell,  2  M.  &  S.  39,  it  was 
held  that  the  obligee  of  a  bond,  given  by 
principal  and  surety,  conditioned  for  the 
payment  of  money  by  instalments,  who 
lias  jjroved  under  a  commission  of  bank- 
ruptcy against  the  principal  the  whole 
debt,  and  received  a  dividend  thereon  of 
2s.  and  7d.  in  the  pound,  may  recover 
against  the  surety  an  instalment  due, 
making  a  deduction  of  2a-.  and  7(1.  on 
the  amount  of  such  instalment,  and  the 
surety  is  not  entitled  to  have  tlic  whole 
dividend  applied  in  discharge  of  that 
instalment,  but  only  ratably  in  part 
payment  of  each  instalment  as  it  be- 
comes due.  See  farther,  Williams  r. 
Eawlinson,  3  Bing.  71.  The  fact  that 
a  payment  was  made  to  a  creditor  hav- 
ing several  demands  against  tiie  same 
debtor,  by  a  surety  of  such  debtor  on 
one  of  the  debts,  hut  with  the  debtor's 
own  money,  does  not  show  tliat  the 
debtor  intended  such^  payment  to  apply 
to  the  debt  guaranteed.  Mitchell  v. 
Dall,  4  Gill.  &  Johns.  361 .     In  Doually 


VOL.    II. 


13 


146 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


In  cases  of  payments  which  arc  not  made  by  the  debtor 
voluntarily,  the  creditor  has  no  right  of  appropriation,  but 
must  apply  the  money  towards  the  discharge  of  all  the  debts 
in  proportion,  (a) 

'A  question  has  been  made  as  to  the  manner  of  making  up 
the  account  where  partial  payments  have  been  made  at  dif- 
ferent times,  on  bonds,  notes,  or  other  securities.  Interest 
may  he  cast  in  three  ways.  It  may  be  cast  on  the  whole 
sum  to  the  day  of  making  up  the  account,  and  also  upon 
each  payment  from  the  time  when  made  to  the  same  day, 
and  the  difference  between  these  sums  is  the  amount  then 
due.  Or  interest  may  be  cast  on  the  whole  sum  to  the  day 
of  the  first  payment,  and  added  to  the  original  debt,  and  the 
payment  being  deducted,  on  the  remainder  interest  is  cast 
to  the  next  payment,  and  so  on.  The  objection  to  this 
method  is,  that  if  the  payment  to  be  deducted  is  not  equal 
to  the  interest  which  has  been  added  to  the  original  sum, 
then  a  part  of  this  interest  enters  into  the  remainder,  on 
which  interest  is  cast,  and  thus  the  creditor  receives  com- 
pound interest.  A  third  method  is,  to  compute  the  interest 
on  the  principal  sum  from  the  time  when  interest  became 


V.  Wilson,  5  Leigh.  329,  it  was  held  that 
if  A.  owes  a  debt  to  B.,  payable  on  de- 
mand," for  which  C.  is  A.'s  surety,  and 
A.  assigns  debts  of  others  to  B.  in  part 
payment,  and  after  such  assignment, 
hut  before  the  assigned  debts  arc  col- 
lected, A.  contracts  another  debt  to  B., 
for  which  there  is  no  security,  B.  cannot 
in  such  case,  after  the  collection  of  the 
assigned  debts,  apply  the  same  to  the 
payment  of  A.'s  last  debt  contracted 
after  the  assignment  was  made,  and  re- 
cover the  whole  amount  of  the  first  debt 
from  the  surety. — A  debtor  cannot  ap- 
priate  a  payment  in  such  manner  as  to 
aflect  the  relative  liability  or  rights  of 
his  diflierent  sureties  without  their  con- 
sent. Postmaster-General  v.  Norvell, 
Gilpin,  lOG. 

(a)  Thus,  where  a  creditor  recovered 
one  judgment  on  several  notes,  some 
of  which  were  made  by  the  judgment 
debtor  alone,  and  others  were  signed 
also  by  a  surety,  and  took  out  an  exe- 
cution which  was  satisfied  in  part  by  a 
levy,  it  was  held  that  he  could  not  ap- 


propriate this  pfiyment  solely  to  the 
notes  not  signed  by  the  surety,  but  that 
all  the  notes  were  paid  proportionably. 
Blackstone  Bank  v.  Hill,  10  Pick.  129. 
So  where  an  insolvent  debtor  assigns 
his  property  for  the  benefit  of  such  of 
his  creditors  as  become  parties  to  the 
assignment,  and  thereby  release  their 
claims,  and  a  dividend  is  received  by 
one  of  such  creditors,  it  must  be  ap- 
plied ratably  to  all  his  claims  against 
the  debtor,  as  well  to  those  upon  which 
other  parties  arc  liable,  or  which  are 
otherwise  secured,  as  to  those  which 
are  not  so  secured.  "  This  is  not  a 
case,"  say  the  court,  "  in  which  the 
debtor  or  creditor  has  the  right  to  make 
the  application  of  any  payment,  for  the 
application  is  made  by  law  according 
to  the  circumstances  and  justice  of  the 
case."  Commercial  Bank  ?>.  Cunning- 
ham, 24  Pick.  270.  See  also  Merrimack 
County  Bank  v.  Brown,  12  N.  H.  320; 
Waller  v.  Lacy,  1  M.  &  Gr.  54.  But 
sec,  contra,  Portland  Bank  v.  Brown,  22 
Maine,  295. 


CH.  III.]  DEFENCES.  147 

payable  to  the  first  time  when  a  payment,  alone,  or  in  con- 
junction with  preceding  payments  with  interest  cast  on 
them,  shall  equal  or  exceed  the  interest  due  on  the  prin- 
cipal. Deduct  this  sum,  and  cast  interest  on  the  balance 
as  before.  In  this  way  payments  are  applied  first  to  keep 
down  the  interest,  and  then  to  diminish  the  principal  of  the 
debt,  and  the  creditor  does  not  receive  compound  interest. 
This  last  method  has  been  adopted  in  Massachusetts  by 
decision,  and  generally  prevails,  (b)  ». 

One  holding  a  note  on  which  interest  is  payable  annually 
or  semi-annually  may  sue  for  each  instalment  of  interest  as 
it  becomes  payable,  although  the  note  is  not  yet  due.  (c) 
But  after  the  principal  becomes  due  the  unpaid  instalments 
of  interest  become  merged  in  the  principal,  and  must  there- 
fore be  sued  for  with  the  principal,  if  at  all.  (d)  And  if  he 
allows  the  time  to  run  by  without  demanding  interest,  he 
cannot  afterwards,  in  an  action  on  the  note,  recover  com- 
pound interest,  (e) 

SECTION  n. 

OF   PERFORMANCE. 

Having  treated  of  payment  as  the  specific  defence  to  an 
action  grounded  on  alleged  non-payment,  we  will  now  speak 
of  performance,  generally,  as  the  most  direct  contradiction 
and  the  most  complete  defence  against  actions  for  the  breach 
of  contract. 

To  make  this  defence  effectual,  the  performance  must 
have  been  by  him  who  was  bound  to  do  it ;  and  whatso- 
ever is  necessary  to  be  done  for  the  full  discharge  of  this 
duty,  although  only  incidental  to  it,  must  be  done  by  him- 

(h)  Dean  i'.  Williams,  17  Mass.  417  •,  5G8;  Cooley  v.  Eose,  3  id.  221 ;  Ilerries 

Fay  V.  Bradley,  1  Pick.  194  ;  and  see  v.  Jamicson,    5    T.   R.  553.     And  see 

Connecticut   v.  Jackson,  1  Johns.   Ch.  ante,  p.  132,  n.  (a.) 
17;   French   v.    Kennedy,    7   Barbour,  (f/)  Howe  r.  Bradley,  19  Maine,  31. 

452 ;  Williams  w.  Houghtaling,  3  Cow-  {e)    Hastings   v.    AViswall,    8    Mass. 

en,  87,  nolr ,-  Union  Bank  v.  Ivindrick,  455;  Ferry  v.  Ferry,  2  Cush.  92;  Doe 

10  Rob.  [La.]  51  ;  Hart  v.  Dorman,  2  v.  Warren,  7  Grecnl.  48,  and  Bennett's 

Florida,  445;  Jones  v.  Ward,  10  Yerg.  note;  Connecticut  v.  Jackson,  1  Johns. 

160;  Spins  V.  Hamot ;  8  M.  &  S.  17;  Ch.  13;  Van  Bensscooter  ;,•.  Lawson,  6 

United  States   v.   McLcmore,  4   How.  Johns.  Ch.  313;  Attwood  v.  Taylor,  1 

280 ;  Story  v.  Livingston,  13  Pet.  359.  M.  &-Gr.  279  ;  Sparks  v.  G.arrigues,  1 

(c)    Greeuleaf  v.  Kellogg,   2  Mass.  Binn.  152,  165. 


148 


THE    LAW   OF   CONTRACTS. 


[part  II. 


Nor  will  a  mere  readiness  to  do  discharge  him  from  his  liabi- 
lity, unless  he  makes  that  manifest  by  tender  or  an  equiva- 
lent act.  (/) 

1.     Of  Tender. 

If  the  tender  be  of  money,  it  can  be  a  defence  only  when 
made  before  the  action  is  brought,  (§•)  and  when  the  demand 


(/)  Thus  if  a  tenant  by  deed  cove- 
nants to  pay  rent  in  the  manner  reserv- 
ed in  the  lease,  but  no  place  of  payment 
is  mentioned,  the  tenant  must  seek  out 
the  lessor  on  tlie  day  the  rent  falls  due, 
and  tender  him  the  money.  It  would 
not  be  sufficient  that  he  was  on  the  pre- 
mises leased,  at  the  day,  ready  with  the 
money  to  pay  the  lessor,  and  that  the 
latter  did  not  come  there  to  receive  it. 
Haldane  v.  Johnson,  20  Eni^.  Law  & 
Eq.  498.  And  see  Poole  v-  Tumbridr;e, 
2  M.  &  W.  223;  Shep.  Touch.  378; 
Howe  V.  Young,  2  Bro.  &  Binp;.  165. 
In  Cranlcy  v.  Hillary,  2  M.  &  S.  120, 
the  plaintiff  had  agreed  with  the  defen- 
dant his  debtor,  to  release  him  from  the 
whole  debt,  if  the  debtor  would  secure 
him  a  part  by  giving  him  certain  pro- 
missory notes.  The  plaintiff"  never  ap- 
plied for  the  notes,  nor  did  the  defend- 
ant ever  tender  them,  but  he  was  ready 
to  give  them  if  they  had  been  applied 
for.  The  plaintiff  afterwards  sued  the 
defendant  on  the  original  cause  of  ac- 
tion, and  the  defendant  relied  upon  the 
agreement  to  compound.  Held,  that 
the  defendant  should  have  offered  the 
plaintiff"  the  notes,  and  that  as  he  had 
not,  the  plaintiff  was  not  barred  from 
his  action.  See  Soward  v.  Palmer,  2 
Moore,  274;  Reay  v.  White,  1  Cr.  & 
Mees.  748,  that  a  tender  may  be  dispens- 
ed with  under  certain  circumstances. 

{g)  Bac.  Abr.  Tender,  (D) ;  The  Suf- 
folk Bank  v.  The  Worcester  Bank,  5 
Pick.  106.  And  in  Hume  v-  Pcploe,  8 
East.  168,  it  was  held  that  a  plea  of  ten- 
der after  the  day  of  payment  of  a  bill  of 
exchange,  and  heforeaction  brought,  is  not 
good ;  though  the  defendant  aver  that 
he  was  ahvay.s  ready  to  pay  from  the 
time  of  the  tender,  and  that  the  sum 
tendered  was  the  whole  money  then  due, 
owing,  or  payable  to  the  plaintiff  in  re- 
spect of  the  bill,  with  interest  from  the 
time  of  the  default,  for  the  damages  sus- 
tained by  the  plaintiff  by  reason  of  the 


non-performance  of  the  promise.  And 
Lord  Ellenborough  said,  "  In  strictness 
a  plea  of  tender  is  applicable  only  to 
cases  where  the  party  pleading  it  has 
never  been  guilty  of  any  breach  of  his 
contract;  and  we  cannot  now  suffer  a 
new  form  of  pleading  to  be  introduced, 
different  from  that  which  has  always 
prevailed  in  this  case."  And,  per  Laic- 
rence,  J.:  "This  is  a  plea  in  bar  of  the 
plaintiff's  demand,  which  is  for  dama- 
ges ;  and  therefore  it  ought  to  show 
upon  the  record  that  he  never  had  any 
such  cause  of  action,  but  here  the  plea 
admits  it."  So  in  Poole  v.  Tumbridgc, 
2  M.  &  W.  223,  where  the  defendant, 
the  acceptor  of  a  bill  of  exchange,  plead- 
ed that,  after  the  bill  became  due,  and  be- 
fore the  commencement  of  the  suit,  he 
tendered  to  the  plaintiff  the  amount  of 
the  bill,  with  interest  from  the  day  when 
it  became  due,  and  that  he  had  al- 
ways, from  the  time  ichen  the  bill  became 
due,  been  ready  to  pay  the  plaintiff  the 
amount,  with  interest  aforesaid  ;  the 
Court  held  the  plea  bad  on  special  de- 
murrer. And  Parke,  B.,  said:  —  "I 
have  no  doubt  this  plea  is  bad.  The 
declaration  states  the  contract  of  the 
defendant  to  be,  to  pay  the  amount  of 
the  bill  on  the  day  it  became  due,  and 
that  promise  is  admitted  by  the  plea. 
It  is  clearly  settled  that  an  indorsee  has 
a  right  of  action  against  the  acceptor  by 
the  act  of  indorsement,  without  giving 
him  any  notice ;  when  a  party  accepts 
a  negotiable  bill,  he  binds  himself  to  i)ay 
the  amount,  without  notice,  to  whomso- 
ever may  happen  to  be  the  holder,  and 
on  the  precise  day  when  it  becomes  due ; 
if  he  places  himself  in  a  situation  of 
hardship  from  the  difficulty  of  finding 
out  the  holder,  it  is  his  own  fault.  It 
is  also  clearly  settled  that  the  meaning 
of  a  plea  of  tender  is,  that  the  defend- 
ant was  always  ready  to  perform  his 
engagement  according  to  the  nature  of 
it,  and  did  perform  it  so  far  as  he  was 


CU.    III.] 


DEFENCES. 


149 


is  of  money,  and  is  definite  in  amount  or  capable  of  being 
made  so.  It  seems  to  be  settled  that  a  tender  may  be  made 
to  a  quantum  meruit,  although  once  held  otherwise  ;  (A)  but, 
generally,  where  the  claim  is  for  unliquidated  damages,  it  has 
been  held,  in  England,  very  strongly,  that  no  tender  is  ad- 
missible, [i)  In  this  country  cases  of  accidental  or  involun- 
tary trespass  form  an  exception ;  in  part  by  usage,  or  by  an 
extension  of  the  principle  of  the  21  Jas.  1,  ch.  16,  or  express 
statutory  provision,  [j)  This  seems  to  be  settled  in  some 
States,  and  would,  we  think,  be  held  generally.  A  ten- 
der may  be  pleaded  to  an  action  on  a  covenant  to  pay 
money,  {k) 

A  plea  of  tender  admits  the  contract,  and  so  much  of  the 
declaration  as  the  plea  is  applied  to.  It  does  not  bar  the 
debt,  as  a  payment  would,  but  rather  establishes  the  liability 
of  the  defendant;  for,  in  general,  he  is  liable  to  pay  the  sum 
which  he  tenders  whenever  he  is  required  to  do  so.  (/)     But  it 

same  case  in  Carth.  413,  12  Mod.  152, 
Comb.  443,  Holt.  556."  And  see  Cox 
V.  Brain,  3  Taunt.  95. 

[i)  Dearie  v.  Barrett,  2  Ad.  &  El.  82. 
This  was  an  action  by  a  landlord  against 
a  tenant,  for  not  keeping  the  premises 
in  repair,  &c.  The  defendant  moved 
for  leave  to  pay  £5  into  court  by  way 
of  compensation,  tinder  Stat.  3  &  4  Will. 
4,  c.  42,  §  21,  and  also  that  it  might  be 
received  in  court  under  a  plea  of  tender 
before  action  brought.  Patteson,  J.,  said  : 
'■  Is  there  any  instance  of  such  a  plea  to 
an  action  for  unliquidated  damages  1  " 
To  which  While,  for  the  defendant,  an- 
swered :  —  "A  plea  of  tender  is  allowed 
to  a  count  on  a  quantum  meruit.  It  was 
so  settled  in  Johnson  v.  Lancastei",  1 
Str.  576.  Although  the  contrary  was 
once  held  in  Giles  v.  Hartis,  2  Salk. 
622."  Lord  Denman  added,  —  "  It  does 
not  follow  because  you  may  plead  a 
tender  to  a  count  on  a  quantum  meruit, 
that  you  may  also  plead  it  to  any  count 
for  unliquidated  damages."  And  see 
Green  r.  Shurtliff,  19  Verm.  592. 

(j)  New  York  Rev.  St.  vol.  2,  p. 
553,  ^  20,  22  ;  Slack  v.  Brown,  13 
Wend.  390;  Mass.  Kev.  St.  c.  105, 
§  12;  Tracv  v.  Strong,  2  Conn.  659. 

(k)  Johnson  i'.  Clay,  7  Taunt.  436  ; 
1  Moore,  200. 

(/)  Cox  r.  Brain,  3  Taunt.  95;  Hun- 
tington   V.   American    Bank,   6    Tick. 


able,  the  other  party  refusing  to  receive 
the  money.  Hume  v.  Peploe  is  a  deci- 
sive authority  that  the  plea  must  state 
not  only  that  the  defendant  was  ready 
to  pay  on  the  day  of  payment,  but  that 
he  tendered  on  that  day.  This  plea 
does  not  so  state,  and  is  therefore  bad." 
And  see  to  the  same.  City  Bank  v.  Cut- 
ter, 3  Pick.  414  ;  Dewey  v.  Humphrey, 
5  id.  187.  The  case  of  Johnson  v.  Clay, 
7  Taunt.  486,  if  correctly  reported  is 
not  law.  Per  Parke,  B.,  in  Poole  v. 
Tumbridge,  supra. 

(h)  This  was  settled  in  the  case  of 
Johnson  v.  Lancaster,  Str.  576.  The 
report  of  that  case  is  as  follows :  —  '■  It 
was  settled  on  demurrer,  that  a  tender 
is  pleadable  to  a  quantum  meruit,  and 
said  to  have  been  so  held  before  in  B. 
R.,  10  W.  3,  Giles  v.  Hart,  2  Salk.- 
622."  In  reference  to  this  case  of  Giles 
V.  Hart,  the  learned  reporters,  in  a  note 
to  Dearie  v.  Barrett,  2  Ad.  &  El.  82, 
say:  —  "In  Johnson  v.  Lancaster  this 
case  is  cited  from  Sallceld ;  and  it  is 
said  to  have  been  there  decided  that  a 
tender  is  pleadable  to  a  quantum  meruit  ; 
but  that  does  not  appear  from  the  re- 
port in  Salkeld,  and  the  report  in  1  Lord 
Raymond,  255,  states  a  contrary  doctrine 
to  have  been  laid  down  by  llolt,  C.  J., 
and  is  cited  accordingly,  in  20  Vin.  Ab. 
tit.  Tender  (S).  pi.  6.  The  point  is  not 
expressly  mentioned  in  the  reports  of  the 

13* 


150 


THE   LAW   OF    CONTRACTS. 


[part  II. 


puts  a  stop  to  accruing  damages,  or  interest  for  delay  in 
payment,  and  gives  the  defendant  costs,  (m)     It  need  not  be 


q^O  ;  Bennett  v.  Francis,  2  B.  &  P. 
550;  Scaton  v.  Benedict,  5  Binph.  31  ; 
Jones  V.  Hoar,  5  Pick.  291  ;  Bulwer 
V.  Home,  4  B.  &  Ad.  152;  Stattbrd  v. 
Clark,  2  Bing.  377. — The  authorities 
and  practice  iiavc  not  been  entirely  uni- 
form as  to  the  cft'cct  of  a  payment  of 
money  into  court,  either  in  actions  of 
assumpsit  or  tort.  In  assumpsit  the 
modern  doctrine  is  that  payment  into 
court,  when  the  counts  are  general,  and 
there  is  no  special  count,  is  an  admis- 
sion that  the  amount  paid  in  is  due  in 
respect  of  some  contract,  but  not  that 
the  defendant  is  liable  on  any  particular 
contract  upon  which  the  plaintiff'  may 
choose  to  relj'.  Kingham  v.  Robins,  5 
Mees.  &  W.  94  (1839);  Stapleton  v. 
Nowell,  6  M.  &  W.  9  (1840);  Archer 
r.  English,  1  Man.  &  Gr.  873  (1840); 
Charles  v.  Branker,  12  Mees.  &  Wels. 
743  (1844) ;  Edan  v.  Dudfield,  5  Jurist, 
317  (1841.)  On  the  other  hand,  if  the 
declaration  is  on  a  special  contract,  and 
it  seems  on  the  same  principle,  if  there 
are  general  counts  and  also  a  special 
count,  the  payment  admits  the  cause  of 
action  as  set  forth  in  such  special  count, 
but  does  not  admit  the  amount  of  dam- 
ages therein  stated.  Stoveld  v.  Brewin, 
2  Barn.  &  Aid.  116  (1818)  ;  Guillod  v. 
Nock,  1  Esp.  347  (1795)  ;  Wright  v. 
Goddard,  8  Adol.  &  El.  144  (1838); 
Yate  V.  Willan,  2  East.  134  (1801); 
Bulwer  v.  Home,  4  Barn.  &  Ad.  132 
(1832)  ;  Bennett  v.  Francis,  2  Bos.  & 
Pull.  550  (^1801.)  In  Jones  v.  Hoar, 
5  Pick.  285  (1827,)  there  were  three 
counts,  one  upon  a  promissory  note, 
one  for  goods  sold  and  delivered,  and 
a  third  for  money  had  and  received. 
The  defendant  brought  in  money  gene- 
rally, •'  on  account  of,  and  in  satisfaction 
of  the  plaintiff''s  damages  in  the  suit." 
The  court  thought  this  an  admission  of 
all  the  contracts  set  forth  in  the  decla- 
ration, hut  under  the  circumstances  the 
defendant  had  leave  to  amend  and  spe- 
cify that  the  money  was  intended  to  be 
paid  in  upon  the  promissory  note.  So 
in  Huntington  v.  American  Bank,  6 
Pick.  340  (1828),  there  were  two  counts, 
first,  on  an  account  annexed  to  the  writ, 
for  the  plaintiff''s  services,  claiming  a 
specific  sum;  and  second,  a  count  claim- 
ing a  reasonable  compensation  for  his 
services,   and  alleging    their  value  at 


$1,500.  The  defendant  paid  $300  in- 
to court.  The  principal  question  was, 
whether  the  defendant  by  paying  the 
money  into  court  generally,  without  de- 
signating the  count  on  which  it  was 
paid  in,  admitted  the  contract  of  hir- 
ing, as  set  out  in  the  second  count,  thus 
leaving  no  question  for  the  jury,  except 
the  value  of  the  plaintiff''s  services. 
The  court  held  that  it  did.  In  Spald- 
ing V.  Vandercook,  2  Wend.  431  (1829,) 
the  declaration  contained  a  count  on  a 
promissory  note  for  $131,  and  also  the 
common  money  counts.  The  defendant 
paid  in  $89  and  sought  to  reduce  the 
amount  of  the  plaintiff''s  demand  to  that 
sum,  by  showing  that  the  consideration 
of  the  note  failed.  The  court  admitted 
evidence  to  that  point,  notwithstanding 
the  plea.  See  Donnell  v.  Columbian 
Insurance  Company,  2  Sumner,  366 
(1836.)  In  Elgar  v.  Watson,  1  Carr. 
&  Marsh.  494  (1842,)  the  action  was 
assumpsit  for  use  and  occupation,  and 
for  money  lent.  Coleridge,  J.,  held  that 
a  general  payment  by  the  defendant, 
acknowledged  the  plaintiff' 's  right  to 
recover  something  on  every  item  in  his 
bill  of  particulai's,  and  it  was  for  the 
jury  to  assess  the  amount. — In  actions 
of  tort  the  same  general  principles  seem 
to  be  applied.  If  the  declaration  is 
special,  payment  into  court  operates  as 
an  admission  of  the  cause  of  action,  as 
set  out  in  the  declaration.  Thus  in 
actions  against  railways  for  injuries  re- 
ceived by  the  negligence  of  the  com- 
pany, or  in  an  action  against  a  town  for 
a  defect  in  the  highway,  payment  into 
court  admits  the  defendant's  liability 
as  set  out,  and  leaves  the  question  of 
damages  for  the  jury.  Bacon  i\  Charl- 
ton, 7  Cush.  R.  581 ;  Perren  v.  The  Mon- 
mouthshire Railway  Co.,  20  Eng.  Law 
&  Eq.  258 ;  and  see  Lloyd  v.  Walkey, 
9  C.  &  P.  771.  On  the  other  hand,  if 
a  declaration  in  tort  is  general,  as  in 
trover  for  a  number  of  articles,  payment 
into  court  would  admit  a  liability  on 
some  cause  of  action,  but  not  any  parti- 
cular article  mentioned  in  the  decla- 
ration. Schrcger  v.  Garden,  10  Eng. 
Law  &  Eq.  513  ;  Cook  v.  Martle,  8 
C.  &  P.  568 ;  Story  v.  Finnis,  3  Eng. 
Law  &  Eq.  548. 

(m)  Dixon  v.  Clark,  5  Com.  B.  R.  365 ; 
Waistcll  V.  Atkinson,  3  Bin":.  290  ;  Law 


CU.  Ill,] 


DEFENCES. 


151 


made  by  the  defendant  personally  ;  if  made  by  a  third  per- 
person,  at  his  request,  it  is  sufficient ;  (??.)  and  if  made  by  a 
stranger  without  his  knowledge  or  request,  it  seems  that  a 
subsequent  assent  of  the  debtor  would  operate  as  a  ratifica- 
tion of  the  agency  and  make  the  tender  good,  (o)  Any 
person  may  make  a  valid  tender  for  an  idiot ;  and  the  reason 
of  this  rule  has  been  held  applicable  to  a  tender  for  an  infant 
by  a  relative  not  his  guardian,  (p)  And  if  an  agent  furnish- 
ed with  money  to  make  a  tender,  at  his  own  risk  tenders 
more,  it  is  good,  {q)  So  a  tender  need  not  be  made  to  a 
creditor  personally ;  but  it  must  be  made  to  an  agent  actu- 
ally authorized  to  receive  the  money,  (r)  If  the  money  be 
due  to  several  jointly,  it  may  be  tendered  to  either,  but  must 
be  pleaded  as  made  to  all.  (s)  It  perhaps  is  good  if  made  to 
one  appointed  executor,  if  he  afterwards  prove  the  will,  (t) 

The  whole  sum  due  must  be  tendered,  (u)  as  the  creditor 
is  not  bound  to  receive  a  part  of  his  debt.  But  this  does 
not  mean  the  whole  that  the  debtor  owes  to  the  creditor; 
for  he  may  owe  him  many  distinct  debts ;  and  if  they  are 
perfectly  separable,  as   so  many  notes,  or  sums  of  money 


V.  Jackson,  9  Cow.  641 ;  Coit  i'.  Hous- 
ton, 3  Johns.  Cas.  243  ;  Carley  v. 
Vance,  17  Mass.  389  ;  Kaymond  v. 
Bearnavd,  12  Johns.  274;  Cornell  v. 
Green,  10  S.  &  R.  14.  A  tender  may 
be  sufficient  to  stop  the  running  of  in- 
terest although  not  a  Uchnical  tender  so 
as  to  give  costs.  Goft'  v.  Rehoboth,  2 
Cush.  477  ;  Suftolk  Bank  v.  Woi'cester 
Bank,  5  Pick.  106. 

(«)  Cropp  V.  Hambleton,  Cro.  El. 48  ; 
1  Rol.  Abr.  421,  (K.)  pi.  2.  A  tender 
may  be  made  by  an  inhabitant  of  a 
school  district,  on  behalf  of  such  district, 
without  any  express  authority,  and  this, 
if  ratified  by  the  district  is  a  good  tender. 
Kincaid  v.  Brunswick,  2  Eairf.  188. 

(o)  Per  Best,  C.  J.,  in  Harding  v. 
Davis,  2  C.  &  P.  78  ;  and  see  11  Maine, 
188,  2  M.  &  S.  86. 

(/})  Co.  Litt.  206.  Brown  v.  Dysin- 
gcr,  1  Rawle,  408. 

(f/)  Read  v.  Goldring,  2  M.  &  S.  86. 

(r)  Kirton  v.  Braithwaitc,  1  M.  &  W. 
313;  Goodlead  v.  Blewith,  1  Campb. 
477.  Tender  to  a  merchant's  clerk,  at 
the  store,  for  goods  previously  bought 
there,  is  good,  although  the  claim  had 


then  been  lodged  with  an  attorney  for 
collection.  Hoyt  v.  Byrnes,  2  Eairf. 
475.  And  this  although  the  clerk  had 
been  forbidden  to  receive  the  money,  if 
tendered.  Moffat  v.  Parsons,  5  Taunt. 
307.  Tender  to  the  attorney  of  a  cre- 
ditor who  has  the  claim  left  for  collec- 
tion, is  good.  Watson  v.  Hetherington, 
1  C.  &  K.  36  ;  Crozer  v.  Pilling,  4  B.  & 
C.  28;  S.  C.  6D.&R.  132.  And  ten- 
der to  such  attorney's  clerk,  at  his  of- 
fice, the  principal  being  absent,  may  be 
goo(^.  Kirton  v.  Braithwaitc,  supra ; 
and  see  Wilmot  v^  Smith,  3  C.  &  P. 
453;  Barrett  v.  Deere,  M.  &  Malk. 
200;  See  Bingham  v.  Allport,  1  Nov. 
&  Man.  398.  The  debtor  is  not  obliged 
to  tender  for  such  attorney's  letter.  Kir- 
ton V.  Braithwaite.  supra. 

(s)  Douglas  V.  Patrick,  3  T.  R.  683. 
So  a  tender  of  a  deed  to  one  of  two 
joint  purchasers  is  sufficient.  Dawson 
V.  Ewing,  16  S.  &  R.  371. 

(/)  lEq.  Cas.  Abr.319.  But  see  Todd 
V.  Parker,  Coxe,  45. 

(m)  Dixon  V.  Clark,  5  C.  B.  365.  In 
this  case  a  declaration  in  debt  on  simple 
contract  contained  two  counts,  in  each 


152 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


otherwise  distinct,  the  debtor  has  a  right  to  elect  such  as  he 
is  willing  to  acknowledge  and  pay,  and  make  a  tender  of 
them.     And  if  the  tender  be  for  more  than  the  whole  debt, 


of  which  £26  were  demanded.  The  de- 
fendants pleaded  as  to  the  causes  of  ac- 
tion, as  to  £5,  parcel,  &c.,  a  tender.  The 
plaintiff  replied  that  before  and  at  the 
time  of  the  tender,  and  of  the  request  and 
refusal  after  mentioned,  and  until,  and 
at  the  commencement  of  the  action,  a 
lai'ger  sum  than  £5,  to  wit,  £13  15s., 
part  of  the  money  in  the  declaration 
demanded,  was  due  from  the  defendants 
to  the  plaintiff  as  one  entire  sum,  and  on 
one  entire  contract  and  liability,  and  in- 
clusive of,  and  not  separate  or  divisible 
from  the  said  sum  of  £5,  and  the  same 
being  a  contract  and  liability  by  which 
the  defendants  were  liable  to  pay  to  the 
plaintiff  the  whole  of  the  said  larger 
sum,  in  one  entire  sum  upon  request; 
and  that,  after  the  last  mentioned  and 
larger  sum  had  become  so  due,  and 
while  the  same  remained  unpaid,  the 
plaintiff'  requested  of  the  defendants  pay- 
ment of  the  last  mentioned  and  larger 
sum,  of  which  the  said  £5  in  the  plea 
mentioned  was  then  such  indivisible 
parcel  as  aforesaid,  yet  that  the  de- 
fendants refused  to  pay  the  said  larger 
sum  ;  wherefore  the  plaintiff  refused  the 
said  £5.  Held,  on  special  demurrer, 
that  the  replication  was  a  good  answer 
to  the  plea,  and  that,  if  there  was  any 
set-off  or  other  just  cause  for  not  pay- 
ing the  larger  sum,  it  should  have  come 
by  way  of  rejoinder.  So  in  Boyden 
V.  Moore,  5  Mass.  365,  where  the  de- 
fendant had  brought  into  court  what  she 
supposed  justly  due  on  the  action,  and 
the  costs  up  to  the  time,  but  upon  the 
trial  it  appeared  that  she  had  brought 
in  too  little  by  forty-one  cents,  and  tlie 
judge  directed  the  jury  that  they  might 
still  find  a  verdict  for  the  defendant,  if 
the  balance  api)eared  to  them  a  mere 
trifle,  and  tliey  found  accordingly,  a 
new  trial  was  granted  for  the  misdirec- 
tion of  the  judge.  And  Parsons,  C.  J., 
said:  —  "It  is  a  well  known  rule  that 
the  defendant  must  take  care  at  his 
peril,  to  tender  enough,  and  if  he  does 
not,  and  if  the  ])laintiff  replies  tliat  there 
is  more  due  than  is  tendered,  which  is 
traversed,  the  issue  will  be  against  the 
defendant,  and  it  will  be  the  duty  of  the 
jury  to  assess  for  the  plaintiff  tiie  sum 
due  on  the  promise ;  and  if  it  be  not 


covered  b}!-  the  money  tendered,  he  will 
have  judgment  for  the  balance.  If  the 
present  direction  of  the  judge  had  been 
in  the  trial  of  such  an  issue  arising  on  a 
plea  of  tender,  we  cannot  think  the  di- 
rection to  be  right.  The  defendant  can- 
not lawfully  withhold  from  the  plaintiff 
any  money  due  to  him,  however  small 
the  sum,  and  if  the  defendant  intended  to 
tender  as  much  money  as  the  plaintiff 
could  claim,  but  made  a  mistake  in  her 
calculation,  she  must  suffer  for  her  own 
mistake,  and  not  the  plaintiff,  although 
the  injury  to  him  may  be  very  small, 
and  such  as  most  men  would  disregard. 
From  the  calculation  made  by  the  judge 
in  the  hurry  of  the  trial  the  deficiency 
was  about  fourteen  cents,  but  on  a  more 
correct  calculation  it  amounts  to  about 
forty-one  cents.  And  if  at  the  time  the 
money  was  brought  in,  no  action  had 
been  pending,  and  the  plaintiff  had  then 
received  and  indorsed  the  payment,  he 
might  afterwards  have  commenced  and 
maintained  an  action  to  recover  the  bal- 
ance then  due.  That  the  law  will  not 
regard  trifles  is,  when  properly  applied, 
a  correct  maxim.  But  to  this  point 
it  is  not  applicable.  In  calculating  in- 
terest there  may  and  probably  must 
arise  fractions  not  to  be  expressed  in  the 
legal  money  of  account ;  these  fractions 
are  trifles,  and  may  be  rejected.  lu 
making  payments  it  is  sometimes  not 
possible,  from  the  value  and  divisions 
of  the  current  coin,  to  make  the  exact 
sum  ;  —  if  tlie  payment  be  made  as  near- 
ly as  it  can  conveniently  be  made,  the 
fractional  part  of  a  small  coin  may  be 
neglected;  it  is  a  trifle.  But  the  pre- 
sent case  is  not  one  of  these  trifles.  A 
man  may  sue  and  recover  on  a  note 
given  for  forty  cents  ;  also  on  a  larger 
note  where  forty  cents  remain  unpaid. 
It  is  therefore  our  opinion  that  the  jury 
ought  to  have  been  directed  to  calculate 
the  interest  on  the  second  note,  and  de- 
ducting the  payments,  if  a  balance  re- 
mained unpaid,  to  find  tiiat  l)alancc  for 
the  plaintiff.  If  any  sum  large  enough  to 
be  discharged  in  the  current  coin  of  the 
country  is  a  trifle,  which  although  due, 
the  jury  are  not  obliged  by  law  to  award 
to  the  plaintiff,  the  creditor;  it  will  be 
difficult  to  draw  a   line   and  say  how 


en.  III.] 


DEFENCES. 


153 


it  is  valid;  (i')  unless  it  be  accompanied  with  a  demand  of 
the  balance,  and  the  creditor  objects  for  that  reason.  Tf  the 
obligation  be  in  the  alternative,  one  thing  or  another  as 
the  creditor  may  choose,  the  tender  should  be  of  both  that 
he  may  make  his  choice,  (iv) 

A  tender  must  be  made  at  common  law,  on  the  very  day 
the  money  is  due,  if  that  day  be  made  certain  by  the  con- 
tract, (x)  But  the  statutes  and  usages  of  our  States  (?/) 
generally  permit  the  tender  to  be  made  after  that  day,  but 
before  the  action  is  brought ;  and  in  some  it  may  be  made 


large  a  sura  must  be,  not  to  be  a  trifle. 
The  liiw  gives  us  no  rule."  But  a  ten- 
der of  the  sum  jnstli/  due  by  the  condi- 
tion of  a  bond,  is  good,  although  less 
tlian  the  penalty.  Tracy  v.  Strong,  2 
Conn.  659. 

(i')  Astley  V.  Reynolds,  2  Str.  916; 
Wade's  case,  5  Rep.  115  ;  Dean  v. 
James,  4  B.  &  Ad.  546  ;  Douglas  v. 
Patrick,  3  T.  R.  683 ;  Black  v.  Smith, 
Peake,  88;  Cadman  v.  Lubbock,  5  D. 
&  R.  289  ;  Bevans  v.  Recs,  5  M.  &  W. 
306.  In  this  last  case  the  defendant, 
who  owed  the  plaintiif£108for principal 
and  interest  on  two  promissory  notes,  in 
consequence  of  an  application  from  the 
plaintiff's  attorney  for  the  amount,  sent 
a  person  to  the  attorney,  who  told  him  he 
came  to  settle  the  amount  due  on  the 
notes,  and  desired  to  be  informed  what 
was  due,  and  laid  down  150  sovereigns, 
out  of  which  he  desired  the  attorney  to 
take  the  principal  and  interest,  but  the 
attorney  refused  to  do  so,  unless  a  shop 
account,  due  from  the  plaintiff  to  the 
defendant  were  fixed  at  a  certain  a- 
mount :  —  Held,  that  this  was  a  good 
tender  of  the  £108,  the  fixing  of  the 
shop  account  being  a  collateral  matter, 
which  the  attorney  had  no  right  to  re- 
quire. And  Lord  Abinger  said  :  —  "I 
am  not  disposed  to  lay  down  general 
propositions,  unless  where  it  is  neces- 
sary to  the  decision  of  the  case  ;  but  I 
am'prcpared  to  say,  that  if  the  creditor 
knows  the  amount  due  to  him,  and  is 
offered  a  larger  sum,  and,  without  any 
objection  on  the  ground  of  want  of 
change,  makes  quite  a  collater.al  objec- 
tion, that  will  be  a  good  tender."  But 
the  tender  of  a  £5  bank  note  in  pay- 
ment of  a  debt  of  £3  10s.,  and  request- 
ing the  creditor  to  make  the  change, 
and  return  the  balance,  has  been  held 
a   bad  tender.    Bettcrbee   v.  Davis,   3 


Campb.  70  ;  and  see  Robinson  v.  Cook, 
6  Taunt.  336;  Blow  v.  Russell,  1  C  & 
p.  365.  If  however  the  creditor  does 
not  objef!t  to  the  request  for  change,  but 
claims  that  more  is  due  than  the  ichoh 
amount  tendered,  and  therefore  refuses 
to  receive  the  tender,  the  tender  is  good. 
Black  V.  Smith,  Peake,  88:  Cadman 
V.  Lubbock,  5  D.  &  R.  289  ;  Saun- 
ders V.  Gr.aham,  Gow,  121.  And  so  if 
he  refuses  the  tender  merely  on  the 
ground  that  the  debtor  will  not  pay 
with  the  surplus  another  and  distinct 
debt,  or  unless  the  debtor  will  fix  his 
own  counter  claim  against  the  creditor 
at  a  certain  sum.  Bevans  v.  Rees,  5 
M.  &  W.  306.  If  a  creditor  has  sepa- 
rate claims  against  divers  ]iersons  for 
different  amounts,  a  tender  of  one  gross 
sum  for  the  debts  of  all,  will  not  sup- 
port a  plea  of  tender,  stating  that  a 
~  certain  portion  of  the  whole  sum  was 
tendered  for  the  debt  of  one.  Strong  v. 
Ilarvey,  3  Bing.  304.  But  a  tender  of 
one  gross  sum  upon  several  demands 
from  same  debtor,  without  designating 
the  amount  tendered  upon  each,  is  good. 
Thetford  v.  Hubbard,  22  Vermont.  440. 

(w)  Pordley's  Case,  1  Leon.  68. 

(x)  City  Bank  v.  Cutter,  3  Pick. 
414 ;  Dewey  v.  Humphrey,  5  Pick. 
187  ;  Maynard  v.  Hunt,  id.  240;  Gould 
V.  Banks,  8  Wend.  5G3  ;  Day  v.  Laffer- 
ty,  4  Pike,  450;  and  see  ante,  p.  148.  n. 
((J.)  Perhaps  on  a  contract  for  the  pay- 
ment of  money,  simply,  when  interest 
would  be  the  only  damages  to  be  reco- 
vered, a  tender  of  the  principal  and  in- 
terest, to  the  day  of  tender,  might  be 
suflicient,  if  made  before  action  brought. 
But  see  ante,  p.  148,  n.  (g.) 

(y)  This  is  the  rule  in  Connecticut 
from  usage.  Tracey  v.  Strong,  2  Conn. 
659. 


154 


THE   LAW   OF   CONTRACTS. 


[part  II. 


after  the  action  is  brought.  It  can  not  generally  be  made 
before  the  debt  is  due,  as  the  creditor  is  not  then  obliged  to 
accept  it,  even  if  it  does  not  draw  interest,  (c) 

To  make  a  tender  of  money  valid,  the  money  must  be  ac- 
tually produced  and  proffered,  (a)  unless  the  creditor  express- 
ly or  impliedly  waives  this  production,  (b)     And  it  seems 


(c)  There  can  be  no  doubt  that  a 
tender  of  a  debt  due  at  a  certain  day, 
before  such  day,  witliout  tendering  also 
interest  up  to  the  day  of  maturity,  is 
bad,  wliere  the  debt  is  drawing  interest. 
Tillou  r.  Britton,  4  Halstead,  120 ;  Saun- 
ders V.  Frost,  5  Pick.  267,  per  Parker,  C. 
J.  It  is  not  so  clear  that  if  a  debt  is 
not  drawing  interest,  tender  df  the  debt 
before  the  day  it  is  due  and  payable,  is 
not  good  ;  and  one  case  has  expressly 
held  it  valid.  M'Hard  v.  Whetcroft,  3 
Harris  &  McHenry,  85. 

(o)  Sucklinge  v.  Coney,  Noy,  74.  This 
case  is  stated  in  the  book  as  follows  :  — 
"  Upon  a  special  verdict,  upon  payment 
for  a  redemption  of  a  mortgage,  the  mort- 
gagor comes  at  the  day  and  place  of  pay- 
ment, and  said  to  the  said  mortgagee, 
'  Here,  I  am  ready  to  pay  you  the  £200,' 
which  was  of  duo  money,  and  yet  held 
it  all  the  time  upon  his  arm  in  bags ; 
and  adjudged  no  tender,  for  it  might  be 
counters  or  base  coin  for  any  thing  that 
appeared."  And  Mr.  Justice  Anderson, 
said, — "  It  is  no  good  tender  to  say  I 
am  ready,  &c."  So  in  Comyns'  Digest, 
Pleader '(2  W.)  28,  it  is  said  "If  issue 
be  upon  the  tender,  there  must  be  an 
actual  offer.  The  tender  alleged  must 
be  legal,  and  therefore  it  is  not  suffi- 
cient to  say  paratns  fuit  solvere,  without 
saying,  et  obtulit."  See  also  Thomas ' 
V.  Evans,  10  East,  101  ;  Dickinson  v. 
Shee,  4  Esp.  68;  Kraus  v-  Arnold,  7 
Moore,  .'59  ;  Leatherdale  v.  Sweepstone, 
3  C.  &  P.  342;  Finch  u.  Brook,  1  Scott, 
70  ;  Glascott  v.  Day,  5  Esp.  48  ;  Brown 
u.  Gilmore,  8  Greenl.  107.  It  is  at  all 
events  essential,  that  the  debtor  have 
the  money  ready  to  deliver.  It  is  not 
sufficient  that  a  third  person  on  the  spot 
has  the  money  which  he  would  lend  to 
the  debtor,  unless  he  actually  consents 
to  lend  it.  Sargent  v.  Graham,  5  N. 
H.  440 ;  Fuller  r.  Little,  7  N.  H.  53.5. 
The  rule  is  thus  laid  down  in  Bakcman 
V.  Pooler,  1 5  Wend.  637  ;  —  to  prove  a 
plea  of  tender,  it  must  appear  that  there 
was  a  production  and  manual  offer  of  the 
money  unless   the  same  be  dispensed 


with  by  some  positive  act  or  declaration 
on  the  part  of  the  creditor;  it  is  not 
enough  that  the  party  has  the  money  in 
his  pocket,  and  says  to  the  creditor  that 
he  has  it  ready  for  him,  and  asks  him 
to  take  it,  without  showing  the  money. 

(6)  The  decisions  are  nice,  and  per- 
haps not  altogether  harmonious  upon 
the  point  of  what  consitutcs  a  waiver  of 
the  production  and  oft'er  of  the  money, 
so  as  to  render  a  tender  valid.  In  Read 
V.  Goldring,  2  M.  &  S.  86,  the  agent  of 
the  debtor  pulled  out  his  pocket  book, 
and  told  the  plaintiff  if  he  would  go  to 
a  neighboring  public  house,  he  would 
pay  the  debt.  The  agent  had  the  ne- 
cessary amount  in  his  pocket  book,  but 
no  money  was  produced.  The  creditor 
refused  to  take  the  amount.  Yet  this 
was  held  a  good  tender.  On  the  other 
hand,  in  Finch  v.  Brook,  1  Scott,  70, 
the  defendant's  attorney  called  at  the 
plaintiff's  shop  to  pay  him  the  debt, 
having  the  money  in  his  pocket  for  that 
purpose,  and  mentioned  the  precise  sum, 
and  at  the  same  time  put  his  hand  into 
his  pocket  for  the  purpose  of  taking  out 
the  money,  but  did  not  actually  produce 
it,  the  plaintiff  saying  he  could  not  take 
it: — And,  semhle,  that  this  was  a  suffi- 
cient tender,  the  plaintiff  having  dis- 
pensed with  the  actual  production  of  the 
money  ;  but  qimre  whether  such  dis- 
pensation ought  not  to  have  been  spe- 
cially pleaded.  And  in  Breed  v.  Hurd, 
6  Pick.  356,  a  witness  told  the  plaintiff 
that  the  defendant  had  left  money  with 
him  to  pay  the  plaintifl's  bill,  and  that 
if  the  plaintiff'  would  make  it  right,  by 
deducting  a  (certain  sum,  he  would  pay 
it,  at  the  same  time  making  a  motion 
with  his  hand  towards  his  desk,  at  which 
he  was  then  standing ;  and  he  swore 
that  he  believed,  but  did  not  know,  that 
there  was  money  enough  in  his  desk, 
but  if  there  was  not,  he  would  have  ob- 
tained it  in  five  minutes,  if  the  plaintiff 
would  have  male  the  deduction,  but  the 
plaintiff  rcjjlied  that  he  would  deduct 
nothing  :  —  IMd,  that  this  was  not  a 
tender.      And    per    Curiam,  "  To   our 


en.  III.] 


DEFENCES. 


155 


that  the  creditor  may  not  only  waive  the  actual  production 
of  the  money,  but  the  actual  possession  of  it  in  hand  by  the 
debtor.  But  it  has  been  held  that  if  a  debtor  has  offered  to 
pay  and  is  about  producing  the  money  and  is  prevented  by 
the  creditor's  leaving  him,  this  is  not  a  tender,  (c)  The 
creditor  is  not  bound  to  count  out  the  money,  if  he  has  it, 
and  offers  it.  (d) 

The  tender  must  be  unconditional;  so,  at  least,  it  is  some- 
times said  ;  but  the  reasonable,  and  we  think  the  true  rule  is, 
that  no  condition  must  be  annexed  to  the  tender,  (e)  which 
the  creditor  can  have  any  good  reason  whatever  for  objecting 
to;  as,  for  instance,  that  he  should  give  a  receipt  in  full  of  all 
demands.  (/)     It  may  not  perhaps  be  quite  settled  that  the 


surprise  tlierc  are  cases  very  nearly  like 
this,  wlierc  the  oft'er  was  held  to  be  a 
valid  tender,  as  in  Harding  v.  Davics,  2 
Carr.  &  Payne,  77,  where  a  woman  stat- 
ed '  that  she  had  the  money  up  stairs.' 
Here  the  witness  said  he  could  get  the 
money  in  five  minutes.  We  all  think 
this  was  not  a  tender.  The  party  must 
have  the  money  about  him,  wherewith 
to  make  the  tender,  though  it  is  not  ne- 
cessary to  count  it.  We  think  there  was 
not  a  tender  here,  even  on  the  broad 
cases  in  England." 

(c)  Lcatherdale  v.  Sweepstone,3  C- & 
P.  342.  In  this  case  in  order  to  prove 
the  tender  a  witness  was  called,  who 
stated  that  he  heard  the  defendant  of- 
fer to  pay  the  plaintiff  the  amount  of 
his  demand,  deducting  14s.  Old.,  which 
balance  was  the  sum  stated  in  the  plea; 
that  the  defendant  then  put  his  hand 
into  his  pocket,  but  befoi'e  he  could 
take  out  the  money  the  plaintiff  left 
the  room  and  the  money  was  there- 
fore not  produced  till  the  plaintiff  had 
gone.  Lord  Tenterden  held  this  no  ten- 
der. But  this  was  only  a  Nisi  Prius 
case  and  may  perhaps  be  questionable. 
For  if  a  tender  be  designedly  avoided 
by  the  creditor,  he  ought  not  to  object 
that  no  tender  was  made.  Gilmorc  v. 
Holt,  4  rick.  258  ;  Southworth  v.  Smith, 
7  Gush.  391. 

\d)  Wlitclcrr.  Knaggs,  8  Ohio,  1G9, 
172;  Dchaly  v.  Hatch,  Walker,  [Miss.] 
369  ;  Breed  v.  Hurd,  6  Pick.  356. 

(e)  In  Bcvans  v.  Rees,  cited,  supra, 
n.  (v),  Manic,  B.,  said,  "No  doubt  a  ten- 
der must  be  of  a  specific  sum,  on  a  spe- 


cific account ;  and  if  it  be  upon  a  con- 
dition which  the  creditor  has  a  right  to 
object  to,  it  is  not  a  good  tender.  But 
if  the  only  condition  be  one  which  he 
no  right  to  object  to,  and  he  has  still 
power  to  take  the  money  due — as  if  the 
condition  were,  '  I  will  pay  the  money 
if  you  will  take  it  up,'  or  the  like  — 
that  docs  not  invalidate  the  tender. 
Here  the  defendant  offers  the  plaintifli" 
the  option  of  taking  any  amount  which 
he  says  is  due,  and  only  ofiers  it  in 
satisfaction  of  that  amount ;  there  is  no 
condition  therefore  which  the  plaintiff 
has  a  right  to  object  to." 

(/')  It  has  been  often  adjudged  that 
if  the  debtor  demand  a  receipt  in  full, 
this  vitiates  his  tender.  Glasscott  v. 
Day,  5  Esp.  48,  seems  to  be  a  leading 
case  on  this  point.  The  sum  claimed 
in  the  action  was  £20.  The  defendant 
pleaded  non-assumpsit,  exceptas  to  £18, 
and  as  to  that  a  tender.  The  witness 
for  the  defendant,  who  proved  the  ten- 
der, stated,  that  he  went  to  the  plaintiff 
with  the  money,  which  he  offered  to 
pay  on  the  plaintiff  giving  him  a  receipt 
in  full.  The  plaintiff  refused  to  receive 
it.  And  Lord  Ellenhoroiif/h  held  this 
not  to  be  a  good  tender.  Thayer  v. 
Brackeit,  12  Mass.  450,  is  also  in  point. 
The  real  debt  was  §190.25.  Part  of 
this  debt  had  been  paid  by  the  note  of 
a  third  person,  which  was  indorsed  by 
tlie  debtor  to  the  plaintiff.  If  this  note 
had  been  )iaid  at  maturity,  the  defend- 
ant would  still  have  lieen  indebted  to 
the  j)laintiff  in  the  sum  of  $40,  which 
he  tendered,  but  required  a  receipt  in 


156 


THE   LAW   OF   CONTRACTS. 


[part  II. 


debtor  may  not  demand  a  receipt  for  the  sum  which  he  pays, 
and  if  this  be  refused,  retain  the  money,  and  yet  (if  always 
ready  to  pay  it  on  those  terms,)  have  the  benefit  of  his  tender. 
But  the  authorities  seem  to  go  in  this  direction.  If  however 
a  tender  be  refused  on  some  objection  quite  distinct  from  the 
manner  in  which  it  was  made,  as  for  the  insufficiency  of  the 
sum  or  any  similar  ground;  objections  arising  from  the  form 
of  the  tender  are  considered  as  waived,  and  cannot  after- 
wards be  insisted  upon,  (g) 


full  of  all  demands.  The  creditor  re- 
fused to  give  this,  as  the  note  was  still 
unpaid,  but  oit'ered  to  give  a  receipt  in 
full  of  all  accounts ;  whereupon  the  ten- 
der was  withdrawn.  Parker,  C.  J., 
said,  —  "  The  defendant  lost  the  benefit 
of  his  tender  by  insisting  on  a  receipt  in 
full  of  all  demands,  wiiich  the  plaintitf 
was  not  obliged  to  give  him.  The  de- 
fendant should  have  relied  on  his  ten- 
der and  upon  proof  at  the  trial  that  no 
more  was  due.  But  he  withdrew  the 
tender,  because  the  plaintiff  would  not 
comply  with  tlie  terms  which  accompa- 
nied it.  This  cannot  l)e  deemed  a  law- 
ful tender,  and  according  to  the  agree- 
ment of  tlie  ))arties,  judgment  must  be 
entered  for  tlic  plaintitf  for  the  balance 
of  his  account  and  for  his  costs."  And 
see  Loring  v.  Cool<e,  3  Pick.  48.  Wood 
V.  Hitchcock,  20  Wend.  47,  is  a  strong 
case  to  this  point.  It  is  there  held  that 
a  tender  of  money  in  payment  of  a  debt 
to  be  available  must  be  without  qualifi- 
cation, i.  e.,  tlicrc  must  not  be  any  thing 
raising  tlie  implication  that  the  debtor 
intended  to  cut  oft'  or  bar  a  claim  for 
any  amount  beyond  the  sum  tendered ; 
and  it  was  accordingly  held  in  this  case 
that  tlie  tender  of  a  sum  of  money  in  full 
discharge,  of  all  denumds  of  the  creditor 
was  not  good.  And  Cowen,  J.,  said  : — 
"  Very  likely  the  defendant  wlicn  he 
made  the  tender  owed  the  plaintiff  in 
the  wliole  more  than  eighty-tive  dollars, 
but  has  succeeded,  by  raising  technical 
difficulties,  in  reducing  the  report  to 
that  sum.  Independent  of  that,  how- 
ever, tlie  tender  was  defective.  It  was 
clearly  a  tender  to  bo  accepted  as  the 
whole  balance  due,  which  is  holdcn  bad 
by  all  the  books.  The  tender  was  also 
bad,  because  the  defendant  would  not 
allow  that  he  was  even  liable  to  the 
full  amount  of  what  he  tendered.  His 
act  was  within  the  rule  which  savs  ho 


shall  not  make  a  protest  against  his 
liability.  He  must  also  avoid  all  coun- 
ter claim,  as  of  a  set-off  against  part  of 
the  debt  due.  That  this  defendant  in- 
tended to  impose  the  terms  or  raise  the 
inference  that  the  acceptance  of  the 
money  should  be  in  full,  and  thus  con- 
clude the  plaintiff  against  litigating  all 
further  or  other  claim,  the  referees  were 
certainly  entitled  to  say.  That  the  de- 
fendant intended  to  question  his  liabi- 
lity to  part  of  the  amount  tendered  is 
equally  obvious,  and  his  object  was  at  the 
same  time  to  adjust  his  counter-claim. 
It  is  not  of  the  nature  of  a  tender  to  make 
conditions,  terms,  or  qualifications,  but 
simply  to  pay  the  sum  tendered,  as  for 
an  admitted  debt.  Interlarding  any 
other  object  will  always  defeat  the  effect 
of  the  act  as  a  tender.  Even  demand- 
ing a  receipt,  or  an  intimation  that  it  is 
expected,  as  by  asking  '  Have  you  got 
a  receipt,'  will  vitiate.  The  demand  of 
a  receipt  in  full  would  of  course  be  in- 
admissible." The  reason  of  this  rule  is 
obvious  where  the  debtor  does  not  in 
fact  tender  all  that  is  due  ;  for  if  a  debt- 
or tenders  a  certain  sum  as  all  that  is 
due,  and  the  creditor  receives  it,  under 
these  circumstances  it  might  compro- 
mise his  rights  in  seeking  to  recover 
more;  but  if  the  same  sum  was  tender- 
ed unconditionally,  no  such  effect  could 
follow.  Sutton  V.  Hawkins,  8  C.  &  P. 
2.'j9.  The  reason  why  a  tender  has  so 
often  been  held  invalid,  when  a  receipt 
in  full  was  demanded,  seems  not  to  have 
been  merely  because  a  receipt  was  asked 
for,  but  ratiier  because  a  part  was  offer- 
ed in  full  payment.  Sec  Cheminant  v. 
Thornton,  2  C.  &  P.  50  ;  f  eacock  v. 
Dickcrson,  2  C.  &  P.  51,  n.  It  is  believ- 
ed that  no  case  has  gone  so  far  as  to  hold 
that  a  tender  would  be  bad  because  a  re- 
ceipt for  the  sum  letidercd -was  requested. 
((j)  Colo  V.  Blake,  Peakc,  179;  Rich- 


en.  III.]  DEFENCES.  157 

The  tender  should  be  in  money  made  lawful  by  the  State 
in  which  it  is  offered.  (//)  But  if  it  be  offered  in  bank  bills 
which  are  current  and  good,  and  there  is  no  objection  to  them 
at  the  time  on  the  ground  that  they  are  not  money,  it  will 
be  considered  so  far  an  objection  of  form,  that  it  cannot  after- 
wards be  advanced,  (i) 

By  a  tender  is  meant,  not  merely  that  the  debtor  was  once 
ready  and  willing  to  pay,  but  that  he  has  always  been  so 
and  still  is.  The  effect  of  it  will  therefore  be  destroyed  if 
the  creditor  can  show  a  demand  by  him  of  the  proper  fulfil- 
ment of  the  contract,  at  the  proper  time,  and  a  refusal  by  the 
debtor,  (j)  But  if  the  demand  is  for  more  than  the  sum 
tendered,  it  will  not  avoid  the  tender,  (k)  A  demand  and 
refusal  may  in  some  cases  have  the  effect  of  annulling  a 
tender,  even  if  they  take  place  before  the  tender  was  made  ; 
although,  as  has  been  said,  generally,  in  this  country  a  ten- 
der is  valid  and  effectual  if  made  at  any  time  after  a  debt 
is  due. 


2,  Of  the  tender  of  chattels. 

The  thing  to  be  tendered  may  not  be  money,  but  some 
specific  article;  and  the  law  in  relation  to  the  delivery  of 
these  under  a  contract  has  been  much  discussed,  and  is  not 
perhaps  yet  quite  settled.  We  have  alluded  to  some  of  the 
questions  which  this  topic  presents,  when  speaking  of  sales 
of  chattels.     Others  remain  to  be  considered. 

It  may  be  considered  as  settled,  that  acts  which  would 
constitute  a  sufficient  tender  of  money,  will  not  always  have 

ardson  v.  Jackson,  8   M.   &   W.  298  ;  (  /)  Dixon  v.  Clark,  5  C  B.  3G5  ;  and 

Bull  V.  Parker,  2  Dowl.  N.  S.  345.  see  Cotton  v.  Godwin,  7  M.  &  W.  147. 

(/i)  Wade's   case,   5   Rep.  114;  Ilal-  (k)  Thetford   v.  Hubbard,    22   Ver- 

lowellw.  Howard,  13  Mass.  235  ;  Moody  mont,   440.     Certainly  not,  if  _thc  de- 

V.  Mahurin,  4  New  H.  R.  296.  mand  is  for  more  than  the  real  debt, 

(i)  This  may  be  fairly  inferred  from  although   the   excess   was   for   another 

the  case  of  Warren  v.  Mains,  7  Johns,  debt  truly  due.    Dixon  v.  Clark,  5  C. 

476  ;  and  see  Ball  r.  Stanley,  5  Yerger,  B.  378.     And  see  Brandon  v.  Newing- 

199  ;  Wheeler  v.  Knaggs,  8"Ohio,  172  ;  ton,  3  Q.  B.  Rep.  915;  Hesketh  v.  Faw- 

Brownw.  Dysinger,  1  Rawle,  408;  Snow  cett,    11    M.    &-   W.   356;    apparently 

V.  Perry,  9  Pick.  542  ;  Towsonz;.  Havre-  overruling  Tyler  v.  Bland,  9  M.  &  W. 

de-Grace  Bank,  6  H.  &  John.  53.  338. 

VOL.  II.  14 


158 


THE   LAW   OF    CONTRACTS. 


[part  ir. 


this  effect  in  relation  to  chattels.  Thus,  if  one  who  is  bound 
to  pay  money  to  another  at  a  certain  time  and  place,  is  there 
with  the  money  in  his  pocket  for  the  purpose  of  paying  it, 
and  is  prevented  from  paying  it  only  by  the  absence  of  the 
payee,  this  has  the  full  efl'ect  of  a  tender.  (/)  But  if  he  is 
bound  to  deliver  chattels  at  a  particular  time  and  place,  it  may 
not  be  enough  if  he  has  them  there.  They  may  be  mingled 
with  others  of  the  like  kind  which  he  is  not  to  deliver.  Or 
they  may  need  some  act  of  separation,  or  identification,  or 
completion,  before  they  could  become  the  property  of  the  other 
party,  (m)     As  in  sales,  the  property  in  chattels  does  not  pass 


(/)  Gilraorc  v.  Holt,  4  Pick.  258  ; 
Soutliworth  V.  Smith,  7  Gush.  391. 

{ill)  Vcazy  V.  Harmony,  7  Grccnl. 
(Bciu)ctt's  Ed.)  91  ;  Wymau  i'.  Wins- 
low.  2  Fairf.  398  ;  Leballister  v.  Nash, 
24  Maine,  31G;  Bates  v.  Churchill,  32 
Maine,  31  ;  Bates  v.  Bates,  Walker, 
401 ;  Newton  v.  Galbraith,5  Johns.  119. 
In  this  last  (^ase  a  note  was  payable  in 
produce  at  the  maker's  house.  The  de- 
fendant pleaded  payment,  and  proved 
that  he  had  hay  in'liis  barn,  and  was 
there  ready  to  pay,  and  the  plaintiff  did 
not  come  for  it.  He  did  not  prove  how 
mu(;h  he  had,  nor  its  value.  Held  no 
payment,  nor  tender.  So  in  Barney  v. 
Bliss,  1  D.  Cliipman,399,  the  Supreme 
Court  of  "Vermont  held  that  a  plea  that 
tiie  debtor  had  the  property  ready  at  the 
time  and  place,  and  there  remained 
through  the  day,  ready  to  deliver  it, 
but  tiuxt  the  creditor  did  not  attend  to 
receive  it,  and  that  the  property  is  still 
ready  for  the  creditor,  if  he  will  receive 
it,  was  not  sutiicient  to  discharge  the 
contract,  and  vest  the  property  in  the 
pavee.  The  det)tor  ought  to  have  gone 
farther,  and  set  ai)art  the  chattels 
[boards]  so  that  the  payee  could  have 
identified  and  taken  them.  See  also 
Barns  v.  Graham,  4  Cowen,  452;  Smith 
r.  Loomis,  7  Conn.  110.  Tliis  last  case 
denies  to  be  sound  law  the  case  of  Rob- 
bins  V.  Luce,  4  Mass.  474,  in  wliich  the 
defendant  ha<l  contracted  to  deliver  the 
plaintitF  27  ash  barrels,  at  tlie  defend- 
ant's dwcUing-iiouse,  on  the  20th  Sept., 
1804.  Being  sued  on  the  contract,  the 
defendant  jdeaded  in  bar  that  on  the 
day  he  had  the  said  27  i)arrcls  at  his 
dwelling  house  n-adi/  to  be  delivered, 
and  hud  always  liad  the  same  ready  for 
delivery.     The  plea  did   not  aver  tiiat 


the  plaintiff  was  not  there  to  receive 
them,  but  the  plea  was  still  held  good 
on  special  demurrer.  See  also  Robin- 
son V.  Batchclder,  4  N.  H.  40 ;  and 
Brown  v.  Berry,  14  N.  H.  459,  Avhich 
tends  to  support  Robbins  v.  Luce.  In 
McConnel  v.  Hall,  Brayton,  223,  the 
Supreme  Court  of  Vermont  held  that  a 
promise  to  pay  the  plaintiff  a  wagon  to 
be  delivered  at  the  defendant's  store, 
was  not  complied  with  by  the  fact  that 
the  defendant  had  the  wagon  at  the 
time  and  place  ready  to  bo  delivered, 
according  to  the  contract.  But  the 
question  here  arose  under  the  (jeneral 
issue,  and  the  Court  held  that  the  fact 
of  readiness  and  willingness  did  not 
support  the  fact  of  i>a>jment  or  discharge 
of  the  contract,  but  tiie  case  does  not 
decide  that  the  defendant,  had  he  plead- 
ed in  bar,  tliat  he  was  ready  at  the  time 
and  place  to  deliver  the  wagon,  and  that 
the  plaintiff  was  not  there  to  receive  it, 
must  have  also  proved  that  he  so  de- 
signated and  set  aj)art  the  wagon,  as 
to  yest  the  property  in  the  plaintiff. 
The  same  distinction  between  tlic  de- 
fence oi  payment,  and  a  defence  founded 
upon  special  matter  pleaded  in  bar,  was 
recognized  in  the  subsequent  case  of 
Downer  v.  Sinclair,  15  Vermont,  495. 
There  the  defendant  had  agreed  to  de- 
liver at  his  shop,  and  the  plaintilf  had 
agreed  to  receive  certain  "  wiiniowing 
mills"  in  discharge  of  a  debt.  A  part 
had  been  delivered  and  received  at  said 
shop,  and  their  value  indorsed  on  the 
claim.  On  the  day  the  remainder  were 
due  the  plaintill' called  at  the  defendant's 
shop  for  tliem,  but  did  not  lind  the  de- 
fendant at  home,  and  went  away  with- 
out making  any  demand.  On  the  same 
day  the  defendant  returned,  and  being 


ClI.  III.]  DEFENCES.  159 

while  any  such  act  remains  to  be  done,  so,  if  there  be  an  ob- 
ligation to  deliver  these  articles,  it  may  be  said  as  a  general 
rule,  that  the  obligation  is  not  discharged  so  long  as  any 
thing  is  left  undone  which  would  prevent  the  property  from 
passing  under  a  sale.  That  is,  it  is  no  tender,  unless  so 
much  is  done  that  the  other  party  has  nothing  to  do  but 
signify  his  acceptance  in  order  to  make  the  property  in  the 
chattels  vest  at  once  in  him.  An  exception  would  doubtless 
be  made  to  this  rule,  in  reference  to  chattels  which  could  be 
ascertained  and  specified  by  weight,  measure,  or  number.  If 
one  bound  to  deliver  twenty  bushels  of  wheat  at  a  certain 
time  and  place,  came  there  with  fifty  bushels  in  his  wagon, 
all  of  the  same  quality,  and  in  one  mass,  with  the  purpose  of 
measuring  out  twenty  bushels  ;  and  was  prevented  from  do- 
ing so  only  by  the  absence  of  the  promisee,  this  must  be  a 
sufiicient  tender.  It  is  not  necessary  that  the  chattels  should 
be  so  discriminated  that  they  might  be  described  and  identi- 
fied with  the  accuracy  necessary  for  a  declaration  in  trover, 
because,  except  in  some  instances  to  be  spoken  of  presently, 
the  promisee  does  not  acquire  property  in  the  chattels  by  a 
tender  of  them  which  he  does  not  accept.  He  may  still  sue 
on  the  contract ;  and  to  this  action  the  promisor  may  plead  a 
tender,  and  "  that  he  always  has  been  and  now  is  ready"  to 
deliver  the  same  ;  and  then  the  promisee  may  take  the  goods 
and  they  become  his  property,  and  the  contract  is  discharged. 
But  the  promisor  need  not  plead  the  tender  unless  he  choose 
to  do  so.     He  may  waive  it,  and  then  the  promisee  recovers 

informed  what    had   taken    place,   set  should  leave  nothin<;  open  to  inference, 

apart   for  the   plaintiff  the  number  of  Thus  in  Savary  v.  Goc.  .3  Wash.  C.  C. 

mills  requisite  to  complete  tlie  contract.  140,  the  contract  was  to  deliver  to  the 

Tliese  mills  had  ever  since  remained  so  plaintiff  a  quantity  of  whiskey  in   the 

set  apart;  the  plaintiff  never  called  a-  month  of  May,   1809.     The  defendant 

gain,  but  brought  suit  upon  his  original  being  sued  on  the  contract,  pleaded  that 

claim.     The  court  held  that  these  facts  he  was  ready  and  willing  at  the  time 

would  uot  support   a   plea  of  pdyment,  and   place  agreed  upon  to  deliver  the 

since  they  were  not  given  and  received  whiskey,  according  to  the  terms  of  the 

by  the  creditor,  but  that  they  would  be  contract ;  but  that  the  plaintiff  was  not 

a.  special   defence   to    the  action,   and  then  and  there  ready  to  accept  the  same ; 

gave  judgment  for  the  defendant.     See  but  the  plea  did  not  state  that  the   de- 

Mattison  v.  Wescott,  13  Vermont,  258  ;  fcndant  rcas  at  the  place,  in  person  or  by 

Oilman  v.   Moore,    14  Vermont,   4,57.  agent,  ready  and  prejiared  to  deliver  the 

But  if  a  plea  of  readiness  and  willing-  whiskey,  and  for  this  omission  the  plea 

ness  to  perform,  amounts  to  a  defence,  was  held  insufficient, 
the  plea  should  be  full  and  positive  ;  it 


160  THE   LAW   OF    CONTRACTS.  [PART  II. 

only  damages  for  the  breach  of  the  contract,  and  acquires  no 
property  in  the  chattels. 

When  a  tender  is  pleaded  with  a  profert,  the  defendant 
should  have  the  article  with  him  in  court.  But  this  would 
be  sometimes  inconvenient,  in  the  case  of  very  bulky  articles, 
and  sometimes  impossible.  A  reasonable  construction  is 
therefore  given  to  this  requirement ;  and  it  is  sufTicient  if  the 
defendant  be  in  actual  possession  of  the  article,  and  ready  to 
make  immediate  delivery  to  the  plaintiff,  in  a  manner  reason- 
bly  convenient  to  him.  (n)  In  such  case,  however,  it  must 
be  averred  in  the  plea  that  the  thing  cannot,  by  reason  of  its 
weight,  conveniently  be  brought  into  court,  (o) 

The  tender  must  be  equally  unconditional  as  if  of  money. 
It  may  be  made  to  an  agent,  or  by  an  agent ;  but  if  the 
agent  of  the  deliverer  has  orders  to  deliver  the  chattels  to  the 
receiver  only  if  he  will  cancel  and  deliver  up  the  contract,  this 
is  not  a  tender,  although  such  agent  had  the  chattels  at  the 
proper  time  and  place,  (p) 

It  is  a  good  defence  pro  tanto  in  such  a  contract,  that  the 
plaintiff  accepted  a  part  of  the  articles  before  the  day  speci- 
fied in  the  contract ;  (q)  or  that  there  was  an  agreement  be- 
tween the  parties,  which  may  be  by  parol,  that  the  chattels 
should  be  delivered  at  another  time  and  place,  and  that  the 
plaintiff  was  there,  wholly  ready  to  deliver  them,  (r)  Or 
that  the  defendant  knew  that  the  articles  were  delivered  at 
another  time  and  place,  and  did  not  dissent  or  object,  (s) 

Generally,  if  no  time  or  place  be  specified,  the  articles  are 
to  be  delivered  where  they  are  at  the  time  of  the  contract,  (t) 

(n)  Bro  Abr.  tit.  Tout  temps  prist,  tender    them.      See  also    Thaxton   v. 
pi.  3 ;  2  Ilol.  Abr.  524.  Edwards,    1    Stewart,    524  ;    McMurry 
(o)  Id.  V.  The  State,  G  Alabama,  32G  ;  Minor 
(;))  Robinson  v.  Batcheldcr,  4  N.  H.  v.   Mithie,    Walker,   24 ;    Chambers   v. 
40.  Winn,    Hardin,   80,  n.  ;    Dandridge   v. 
(q)  Id.                                                    •  Harris,  1  Wash.  328.     A  note  i)ayable 
(r)  Id.  in  specific  articles,  without  mentioning 
(s)  Flagg  V.  Dryden,  7  Pick.  53.  time  or  place,  is  payable  only  on  de- 
(t)  Bronson   v.    Gleason,  7  Barbour,  mand,  and  should  be  demanded  at  the 
472;  Barr  r.  Myers,  3   Watts  &  Serg.  place  where   the  property  is.     Lobdcll 
295,   a   sale  -of  2000    mulberry    trees,  v.  .Hopkins,    5    Cow.  518.      Vance   v. 
The  reason  is  that  the  party  to  receive  Bloomer,  20   Wend.  196.     In    Rice  v. 
is  to  be  the  actor,  by  going' to  demand  Churchill,    2   Dcnio,  145,  a   note   was 
the  articles  ;  and  until  then,  the  other  given  by  the  owner  of  a  sawmill,  pay- 
party  is  not  in  default  by  omitting  to  able  in  lumber,  when  called  for.    It  was 


CII.  III.] 


DEFENCES. 


161 


unless  collateral  circumstances  designate  a  different  place.  (?/) 
If  the  time  be  fixed,  (v)  but  not  the  place,  then  it  will  be 
presumed  that  the  deliverer  was  to  bring  the  articles  to  the 
receiver  at  that  time,  and  for  that  purpose  he  must  go  with 
the  chattels  to  the  residence  of  the  receiver,  [lo)  unless  some- 
thing in  their  very  nature  or  use,  or  some  other  circumstance 
of  equivalent  force,  distinctly  implies  that  they  are  to  be  left 
at  some  other  place,  (x)  And  it  may  happen,  from  the 
cumbrousness  of  the  chattels,  or  other  circumstances,  that 
it  is  obviously  reasonable  and  just  for  the  deliverer  to  ascer- 
tain from  the  receiver,  long  enough  beforehand,  where  they 
shall  be  delivered  ;  and  then  he  will  be  held  to  this  as  a  legal 
obligation,  (y)     So  too,  in  such  a  case,  the  receiver  would 


hcKl  to  be  payable  at  the  maker's  mill, 
and  that  a  special  demand  there  was 
necessary  to  fix  the  maker,  unless  he 
had  waived  the  necessity  thereof. 

(«)  Thus  in  Bronson  v.  Gleason,  7 
Barbour,  472,  while  the  general  rule 
was  admitted,  that  the  store  of  the  mer- 
chant, the  shop  of  the  mechanic,  or 
manufiicturcr,  and  the  farm  or  granary 
of  the  fiu-mcr,  is  the  place  of  delivery 
when  the  contract  is  silent  on  the  sub- 
ject ;  this  rule  was  held  inapplicable 
when  the  collateral  circumstances  indi- 
cated a  dift'erent  place.  It  was  there 
held  that  where  goods  arc  a  subject  of 
general  commerce,  and  are  purchased 
in  large  quantities  for  reshipment,  and 
the  purchaser  resides  at  the  place  of 
reshipment,  and  has  there  a  storehouse 
and  dock  for  that  purpose,  a  contract  to 
deliver  such  purchaser  "  400  barrels  of 
salt  in  good  order,  before  the  first  of  No- 
vember," meant,  a  delivery  at  the  pur- 
chaser's place  of  residence. 

(v)  If  the  time  fall  on  Sunda}',  tender 
on  Monday  is  good.  Barrett  v.  Allen, 
10  Ohio,  426  ;  Avery  v.  Stewart,  2 
Conn.  69.  Salter  v.  Burt,  20  Wend. 
205. — Questions  often  arise  as  to  the 
time  of  day  at  which  a  tender  may,  or 
must  be  made.  It  seems  that  the  debt- 
or must  have  the  property  at  tlie  place 
agreed  upon,  at  the  last  convenient  hour 
of  that  day.  See  Tiernan  v.  Napier,  5 
Yerger,  410  ;  Aldrich  v.  Albec,  1  Grecnl. 
R.  (Bennett's  Ed.)  120;  Savaryv.  Goe, 
3  Wash.  C.  C.  R.  140.  Unless  by  the 
acts  of  the  parties  this  is  waived.  In 
Sweet  r.  Harding,  19  Vermont,  587,  a 
note  was  payable  in  grain,   "  in  Janu- 

14* 


art/."  Tender  was  made  early  in  the 
evening  of  the  last  day  of  that  month, 
but  the  payee  ivas  absent.  The  tender  or 
sep.aration  of  the  grain  was  at  the  debt- 
or's own  dwelling  house,  (where  by  the 
contract  it  was  to  be  delivered)  and  the 
payee  did  not  know  of  it.  The  tender 
was  held  to  be  too  late,  and  no  defence 
to  the  contract.  But  rent  may  be  ten- 
dered to  the  lessor  personally  on  the 
evening  it  falls  due.  Id.  And  see  Start- 
up V.  MacdonaUl,  2  Scott,  N.  K.  485. 

(iv)  Barr  u.  Myers,  3  Watts  &  Serg. 
295;  Roberts  v.  Beatty,  2  Pcnn.  63.  In 
such  cases  the  creditor  has  the  right  to 
appoint  the  place  of  delivery.  Aklrich  v. 
Albce,  1  Greenl.  R.  (Bcnneu's  Ed.)  120. 

(.r)  If  tlie  time  be  fixed,  and  by  the 
contract,  the  payee  has  his  election  of 
the  place,  he  must  notify  the  payor  of 
his  election  in  a  reasonable  time  before 
the  day  of  payment,  or  the  payor  may 
tender  the  articles  at  ^ny  reasonable 
place,  and  notify  the  payee  thereof.  The 
right  of  the  payee  to  elect  the  place  of 
delivery  in  such  cases,  is  not  a  condi- 
tion precedent,  but  a  mere  privilege, 
which  be  may  waive  by  a  neglect  to  ex- 
ercise it.  Peck  V.  Hubbard,  11  Ver- 
mont, 612;  overruling  Basset  i'.  Kerne, 
1  Leon.  69  ;  and  see  Taylor  v.  Gallup, 
8  Vermont,  340;  Townsend  ?i.  Wells, 
3  Day,  327  ;  Russell  v.  Ormsbee,  10 
Vermont,  274. 

()/)  Co.  Litt.  210,  b;  Barr  v.  Mvers, 
3  W.  &  S.  295 ;  Howard  i\  Miner, 
20  Maine,  325;  Bixby  v.  Whitney,  5 
Grecnl.  192  ;  Bean  v.  Sim-^on,  16  Mstine, 
49  :  Mingus  i'.  Tritchet,  3  Uev.  78  ; 
Roberts  v.  Beatty,  2  Penn.  63. 


162  THE  LAW  OF  CONTRACTS.  [rART  II. 

have  the  right  to  designate  to  the  deliverer,  a  reasonable 
time  beforehand,  a  place  of  delivery  reasonably  convenient 
to  both  parties,  and  the  deliverer  would  be  bound  by  such 
direction,  (z)  If  no  place  is  indicated,  and  the  deliverer  is 
not  in  fault  in  this,  he  may  deliver  the  chattels  to  the  receiver, 
in  person,  at  any  place  which  is  reasonably  convenient,  (a) 
And  if  the  deliverer  be  under  an  obligation  to  seek  or  notify 
the  receiver,  he  need  not  follow  him  out  of  the  State  for  this 
purpose,  for  he  is  only  bound  to  reasonable  diligence  and 
efforts,  (b)  And  if  the  receiver  refuses  or  neglects  to  appoint 
a  place,  or  purposely  avoids  receiving  notice  of  a  place,  the 
deliverer  may  appoint  any  place,  with  a  reasonable  regard 
to  the  convenience  of  the  other  party,  and  there  deliver  the 
articles,  (c)  But  though  he  is  not  obliged  to  follow  the  re- 
ceiver out  of  the  State,  yet  if  the  receiver  live  out  of  the 
State,  or  even  out  of  the  United  States,  this  perhaps  does  not 
exempt  him  from  the  obligation  of  inquiring  from  him  where 
the  chattels  shall  be  delivered  ;  (d)  and  the  same  rule  seems 
to  hold  if  the  promisor  lives  out  of  the  United  States  and  the 
promisee  within,  (e) 

If  no  expressions  used  by  the  parties,  and  nothing  in  the 
nature  of  the  goods  or  the  circumstances  of  the  case  controls 
the  presumption,  then  the  place  where  the  promise  is  made 
is  the  place  where  it  should  be  performed.  Nor  will  an  ac- 
tion be  maintainable  upon  such  a  promise,  without  evidence 
that  the  promisee  v/as  ready  at  that  place  and  at  the  proper 
time  to  receive  the  chattel,  or  that  the  promisor  was  unable 
to  deliver  it  at  that  place  and  time.  (/)     The  plaintiff  must 


(z)  Howard  v.  Miner,  20  Maine,  325 ;  been  held  the  plaintiff  may  maintain  his 

Aldrich  v,  Albee,  1  Grecnl.  120.  action  without  proving  a  demand  at  the 

(a)  Howard  v.  Miner,  20  Maine,  325.  time  and  place.     If  the  defendant  was 

(6)  Co.   Lilt.  210;  Smith   v.   Smith,  there  ready  and  willing  to  comply  with 

25  Wend.  405,  2  Hill,  351  ;  Howard  v.  the  contract,  that  might  be  a  good  dc- 

Mincr,  20  Maine,  325.  fence  to  the  action  ;  but  that  mu.st  come 

(c)  Id.  in  by  way  of  defence;  and  on  faiha-e  of 

{d)  Bixby  v.  Whitney,  5  Grecnl.  R.  such  proof,  the  plaintiff  may  recover 

(Bennett's  Ed.)  192.  the  amount  of  his  note  in  money.   Flcm- 

(e)  White  v.  Perley,  15  Maine,  470.  ing  v.  Potter,  7   Watts,  380.     And  see 

But  quaere  if  the  two  preceding  cases  Thomas   v.   Roosa,  7  Jolins.    11.   461  ; 

can  be  reconciled  with  the   cases  and  Townsend  v.  Wells,  3  Day,  327  ;  White 

authorities  cited  SM/jra,  n.  (6.)  v.   Perley,    15    Maine,   470;  Games  v. 

(/)  But  in  a  note  payable  in  specific  Manning,  2  Greene,  251. 
articles  at  a  cerlain  time  and  place,  it  has 


CII.  III.] 


DEFENCES. 


163 


show  a  demand,  or  a  readiness  to  receive,  and  notice  equiva- 
lent to  a  demand,  or  else  that  the  demand  must  have  been 
nugatory,  because  the  defendant  could  not  have  complied 
with  it. 

If  the  promise  be  to  pay  money  at  a  certain  time,  or 
deliver  certain  chattels,  it  is  a  promise  in  the  alternative; 
and  the  alternative  belongs  to  the  promisor,  (g-)  He  may 
do  either  the  one  or  the  other,  at  his  election  ;  nor  need  he 
make  his  election  until  the  time  when  the  promise  is  to  be 
performed  ;  but  after  that  day  has  passed  without  election 
on  his  part,  the  promisee  has  an  absolute  right  to  the  money, 
and  may  bring  his  action  for  it.  (//) 

A  contract  to  deliver  a  certain  quantity  of  merchandise 
at  a  certain  time,  means,  of  course,  to  deliver  the  whole 
then  ;  (i)  and  such  is  its  meaning,  though  the  delivery  is  to 
be  made  on  an  event  which  may  happen  at  one  time  as  to 
one  part,  and  at  another  time  as  to  another  ;  as  on  its  arrival 
at  a  certain  port ;  for  if  a  part  only  arrives  there,  the  promisor 


(9)  A  promise  to  pay  a  certain  sum 
in  money,  at  a  certain  time,  but  "  which 
may  be  discharged  in  good  leather, "  is 
a  conditional  contract,  leaving  the  debt- 
or the  option  of  paying  in  that  manner 
if  he  elect,  at  the  time  of  payment.  It  is 
a  condition  for  the  debtor's  benefit,  and 
he  should  notify  the  other  party  of  his 
desire  to  pay  in  leather,  or  the  right  to 
the  money  becomes  absolute.  Plow- 
man V.  McLane,  7  Ala.  775.  If  the 
leather  rises  in  value,  the  debtor  is  not 
bound  to  pay  in  that  article.  lb.  If  the 
specific  property  is  not  delivered  at  the 
time  and  place  agreed  upon,  and  this 
without  the  fault  of  the  payee,  his  right 
to  recover  the  money  is  absolute.  Stew- 
art V.  Donellcy,  4  Yerger,  177.  And 
the  payee  is  not  bound  to  receive  the 
property  before  the  day  of  payment. 
Orr  V.  Williams,  5  Humph.  423.  In 
Gllman  v.  Moore,  14  Vermont,  457,  the 
note  was  payable  "in  the  month  of  Feb- 
ruary ;  "  the  j)ropcrty  was  set  apart  on 
the  last  day  of  January,  and  kept  there 
in  a  suitable  condition  from  that  time 
througli  the  month  of  February.  The 
tender  was  adjudged  sufficient  to  pass 
the  property  and  extinguish  the  debt. 

(h)  Townscnd  v.  Wells,  3  Day,  327. 
This  was  an  action  on  a  note  for  $80, 
payable  in  rum,  sugar,  or  molasses,  at 


the  election  of  the  payee,  within  eight 
days  after  date.  It  was  held  not  neces- 
sary to  prove  that  the  payee  made  his 
election  and  gave  notice  thereof  to  the 
maker,  but  that  if  the  defendant  did  not 
tender  either  of  the  articles  within  eight 
days,  he  became  immediately  liable  on 
his  note,  and  the  amount  miglit  be  reco- 
vered in  money.  And  see  Roberts  v. 
Beatty,  2  Penn.  63 ;  Wiley  v.  Shoemak, 
2  Greene,  205  ;  Church  v.  Feterow,  2 
Penn. 301 ;  Vanhooserr.  Logan,3  Scam. 
389  ;  Elkins  v.  Parkhurst,  17  Verm.  105. 
If  a  promise  bo  in  the  alternative  to  de- 
liver one  article  at  one  place,  or  ano- 
ther article  at  another  place,  at  the 
election  of  the  debtor,  he  ought  to  give 
the  creditor  reasonable  notice  of  his 
election.  Aldrich  v.  Albee,  1  Greenl. 
(Bennett's  Ed.)  120. 

(i)  Roberts  v.  Beatty,  2  Penn.  63.  If 
however  the  part}"^  accepts  a  part  with- 
out objection,  he  thereby  disaffirms  the 
entirety  of  the  contract,  and  is  liable  to 
pay  for  so  much  as  he  receives,  id. ; 
Oxendale  v.  Wethcrell,  9  B.  &  C.  386 ; 
Booth  V.  Tyson,  15  Verm.  515  ;  Bow- 
kcr  V.  Hoyt,  18  Pick.  555.  Deducting, 
it  seems,  any  damage  sustained  by  the 
non-fulfilment  of  the  contract.  lb.  And 
see  ante,  p.  32,  et.  seq. 


IG-i  THE   LAW   OF   CONTRACTS.  [PART  11. 

is  not  bound  to  deliver,  ( /)  nor  if  he  tenders  is  the  promisee 
bound  to  reeeive,  such  part.  The  contract  is  entire,  and  the 
obligation  of  each  party  is  entire.  But  as  it  is  certainly  com- 
petent for  them  to  contract  that  a  part  shall  be  delivered  at 
one  time,  and  a  part  at  another,  so,  this  construction  may 
be  given  to  a  contract,  either  by  its  express  terms,  or  by  such 
facts  and  circumstances  in  the  transaction,  or  in  the  nature 
of  the  chattels  to  be  delivered,  as  would  distinctly  indicate 
this  as  the  meaning  and  intention  of  the  parties. 

Whenever  chattels  are  deliverable  by  contract  on  a  de- 
mand, this  demand  must  be  reasonable  ;  that  is,  reasonable 
in  time,  and  place  and  manner,  (k)  And  the  conduct  of  the 
promisor  will  always  receive  a  reasonable  construction.  Thus, 
in  general,  if  ajpoper  demand  be  made  upon  him,  his  silence 
will  be  held  equivalent  to  a  refusal  to  deliver  the  chattels.  (/) 
And  by  an  application  of  the  same  universal  principle,  all 
the  obligations  of  both  parties  receive  a  reasonable  con- 
struction. Thus,  if  the  promise  be  to  do  within  a  certain 
time  a  certain  amount  of  labor  on  materials  furnished,  they 
must  be  furnished  in  season  to  permit  that  work  to  be  done 
within  that  time,  by  reasonable  exertions,  (m)  And  if  certain 
work  is  to  be  done,  that  certain  other  work  may  be  dqrie,  all 
to  be  completed  and  the  whole  delivered  within  a  certain 
period,  the  work  first  to  be  done,  must  be  finished  early 
enough  to  permit  the  other  work  to  be  done  in  season,  (n) 

If  by  the  terms  of  the  contract,  certain  specific  articles  are 
to  be  delivered  at  a  certain  time  and  place,  in  payment  of  an 
existing  deJDt,  this  contract  is  fully  discharged,  and  the  debt 
is  paid,  by  a  complete  and  legal  tender  of  the  articles  at  the 
time  and  place,  although  the  promisee  was  not  there  to  re- 
ceive them,  and  no  action  can  be  thereafter  maintained  on 

(  /)  Eussell  V.  Nicoll,  3  "Wend.  112.  due  time,  the  court  held  that  the  debtor 

(k)  Hij^).jins  V.  Emmons,  5  Conn.  76.  was  not  l)oimd  to  deliver  the    salt,  in 

(I)  IIiii;,i:;ins  v.  Emmons,  5  Conn.  7G.  hulk,  at  least,  not  nnless  he  had  received 

And  sec  Dunlap  v.  Hunting,  2  Ucnlo,  notice  that  tlie  creditor  waived  the /wc/j- 

643.  i»;j  of  the  salt,  and  would  receive  the 

(m)  Clement  v.   Clement,   8   N.    II.  salt  in  hulk,  in  full  dischar^^e  of  the  con- 

210.     So  where  the  debtor  was  to  de-  tract.     Goodwin  v.  llolbrook,  4  Wend. 

liver  at  his  factory  a  certain  quantity  of  377. 

salt,   to   be   packed   in   barrels ;  which  (n)    Clement   v.    Clement,   8   N.   H. 

were  to  be  delivered  at  the  factory  by  210. 

the  creditor,  but  which  was  not  done  in 


en.  III.] 


DEFENCES. 


165 


the  contract,  (o)     But  the  property  in  the  goods  has  passed 
to    the  creditor,  and  he   may  retain  them  as  his  own.  (^p) 


(o)  Mitchell  V.  Merrill,  2  Blackf.  87 ; 
Slingerland  v.  Morse,  8  Johns.  474.  In 
this  la.st  case  the  time  of  the  delivery  wae 
rendered  certain  by  the  contract,  but  no 
place.  The  debtor  tendered  tlie  pro- 
perty at  the  place  where  it  was,  (it  be- 
ing cumbrous  articles)  but  the  creditor 
refused  to  receive  it  there,  and  then  ap- 
pointed another  place,  but  the  same  not 
being  delivered,  he  brought  his  action 
on  the  contract,  which  was  either  to 
deliver  tlie  property  or  pay  a  certain 
sum  of  money.  The  tender  was  held 
to  be  a  bur  to  the  action,  and  the  cre- 
ditor was  held  bound  to  resort  to  tlie 
specific  articles  tendered,  and  to  the 
person  in  whose  possession  they  were. 
See  also  Curtiss  i\  Greenbanks,  24  Verm. 
536;  Zinn  v.  Kowley,  4  Barr.  169; 
Games  v.  Manning,  2  Greene,  254. 
Garrard  v.  Zachariah,  1  Stewart,  272, 
is  to  the  same  effect.  Case  v.  Green, 
5  Watts,  262,  is  a  ^trong  case  to  the 
same  point.  There  the  creditor  was 
prevented  by  sickness  from  attending 
at  the  time  and  place  designated,  to  re- 
ceive the  articles.  The  debtor  had  the 
property  there  and  left  it  on  the  ground. 
The  creditor  afterwards  brought  suit  on 
the  contract,  and  the  tender  was  held  a 
good  bar.  See  also  Lamb  v.  Lathrop, 
13  Wend.  95,  which  also  holds,  that  if 
the  tender  be  not  accepted,  the  creditor 
cannot,  by  a  subsequent  demand  and 
refusal,  revive  his  right  to  sue  upon  the 
contract ;  for  the  debtor  is  not  bound, 
as  in  tender  of  money,  to  keep  his  tender 
always  ready.  After  such  tender,  he  is 
.but  a  bailre  of  the  property  for  the  cre- 
ditor, and  his  rights  and  duties  are  the 
same  as  those  of  other  l)ailecs.  Some 
cases  hold  that  a  tender  under  the  cir- 
cumstances stated  in  the  text,  must  al- 
ways be  kept  good,  and  that  a  plea 
averring  that  the  debtor  was  ready  at 
the  time  and  place  to  deliver  the  arti- 
cles, but  that  the  payee  did  not  come  to 
receive  them,  is  bad,  for  not  averring 
that  the  debtor  was  always  and  still  is 
ready  to  deliver  the  same.  Nixon  v. 
Bullock,  9  Yerger,  414  ;  Tiernan  v. 
Napier,  Peck,  212  ;  Miller  v.  McClain, 
10  Yerger,  245  ;  and  dicta  in  Roberts  v. 
Beatty,  2  Penn.  63.  But  this,  as  we  have 
seen,  is  not  the  generally  recognized 
rule.  The  tender,  however,  must  be 
such   as   to  vest   the   property  in  the 


creditor.  The  articles  should  be  so  set 
apart,  and  designated,  as  to  enable  the 
payee  to  distinguish  and  know  them 
from  all  others.  The  absence  of  the 
payee  alone  will  not  dispense  with  such 
designation  and  separation  by  the  debt- 
or. The  fact  that  the  latter  had  the 
articles  at  the  time  and  place,  rtadi/  to 
be  delivered  if  the  other  party  liad  been 
l^resent,  is  not  alone  a  sufficient  tender 
to  vest  the  property  in  the  other  jiarty, 
or  to  bar  an  action  on  the  contract. 
Smith  V.  Loomis,  7  Conn.  110.  In  this 
case  Peters,  J.,  said  :  —  "  Though  we 
find  much  confusion  and  contradiction 
in  the  books  on  this  subject,  our  own 
practice  seems  to  have  been  uniform  for 
nearly  sixty  years,  and  establishes  these 
propositions,  —  1.  That  a  debt  payable 
in  specific  articles,  may  be  discharged 
by  a  tender  of  these  articles,  at  the  pro- 
per time  and  place.  2.  That  the  arti- 
cles must  be  set  apart  and  designated 
so  as  to  enalde  the  creditor  to  distin- 
guish them  from  others.  3.  That  the 
property  so  tendered  vests  in  the  cre- 
ditor, and  is  at  his  risk.  4.  That  a 
tender  may  be  made  in  the  absence  of 
the  creditor."  And  see  McConnel  v. 
Hall,  Brayton,  223 ;  Newton  v.  Gal- 
braith,  5  Johns.  119;  Barns  v.  Gra- 
ham, 4  Cowen,  452 ;  Nichols  v.  Whit- 
ing, 1  Root,  44.3.  After  suc/i  tender,  the 
property  vests  in  the  creditor,  and  he 
may  maintain  trover  for  the  same.  Eix 
V.  Strong,  1  Root,  55. 

{]>)  See  preceding  note.  In  the  cele- 
brated case  of  Weld  v.  Hadley,  1  N.  H. 
295,  a  different  doctrine  was  declared. 
It  was  there  held  that  when  a  creditor, 
to  whom  a  tender  of  specific  articles  is 
made  in  pursuance  of  a  contract,  refuses 
to  accept  the  tender,  he  acquires  no  pro- 
perty in  the  articles  tendered,  tiiough 
the  contract  is  discharged  by  such  ten- 
der. That  was  an  action  of  trover  for 
leather.  It  appeared  that  Hadley  gave 
Weld  a  note,  dated  August  9,  1808,  for 
$M00  dollars,  payable  in  good  merchant- 
able leather  at  cash  price,  in  two  years 
from  January  1,  1809.  When  the  note 
became  due,  Hadley  tendered  to  the 
plaintiff  a  quantity  of  leather,  but  a  dis- 
pute arose  as  to  the  price  of  leather, 
and  Weld  thinking  the  quantity  not 
sufficient  to  pay  the  note,  refused  to  re- 
ceive it,  and  Hadley  took  it  away  and 


166 


THE  LAW   OF   CONTRACTS. 


[part  II. 


These  two  things  go  together 


If  the  contract  and  its  obli- 
gation are  discharged  by  the  tender,  the  property  in  the  chat- 


used  it.  Weld  tlicn  brought  a  suit  upon 
tlic  note ;  Iladlcy  jdeaded  tlic  tender  in 
bar,  and  issue  being  joined  upon  the 
tender,  the  jur}-  found  that  a  sufiicicnt 
quantity  was  tendered,  and  judgment 
was  rendered  in  favor  of  lladley.  Af- 
ter that  suit  was  determined,  Weld  de- 
manded the  leather  of  the  defendant, 
and  tendered  the  expenses  of  keejjiiig. 
Hadley  refused  to  deliver  the  leather, 
and  thereupon  this  suit  was  brought. 
The  case  was  argued  with  great  ability 
on  both  sides.  And  Bichardson,  C.  J., 
in  delivering  the  judgment  of  the  court, 
said :  — ''  The  plaintiff  cannot  prevail 
in  this  action,  unless  he  has  shown  a 
legal  title  to  the  leather,  which  is  the 
subject  of  contest,  vested  in  himself. 
The  question  then  to  be  decided  is, 
whether  upon  the  tender  of  the  leather 
by  tlie  defendant  in  pursuance  of  his  con- 
tract, the  property  vested  in  the  plain- 
tiff, notwithstanding  his  refusal  to  ac- 
cept it.  It  therefore  becomes  necessary 
to  look  into  the  nature  and  consequences 
of  a  tender  and  refusal.  In  some  cases 
the  debt,  or  duty  is  discharged  by  a  ten- 
der and  refusal ;  and  in  other  cases  it 

is  not In  an  obligation 

with  condition  for  the  delivery  of  speci- 
fic articles,  a  tender  and  refusal  of  the 
articles  is  a  perpetual  discharge.  Thus 
if  a  man  make  an  obligation  of  £100, 
with  condition  for  the  delivery  of  corn, 
timber,  &c.,  or  for  the  performance  of 
an  award,  or  the  doing  of  any  act,  &c., 
this  is  collateral  to  the  obligation,  and 
a  tender  and  refusal  is  a  perpetual  bar. 
Co.  Litt.  207  ;  9  Co.  79,  H.  Peytoe's 
case.  So  if  a  man  be  bound  in  200 
quarters  of  wheat  for  delivery  of  100 
quarters  of  wheat,  if  the  obligor  tender 
at  the  day  the  100  quarters,  he  shall  not 
plead  uncore  prist,  because  albeit  it  be 
pai'cel  of  the  condition,  yet  they  be  bona 
peritura,  and  it  is  a  charge  for  the  obli- 
gor to  keep  them.  Co.  Litt.  207.  From 
a  remark  of  Coke  upon  this  example  of 
an  obligation  for  the  delivery  of  wheat, 
it  is  very  clear,  that  he  was  of  opinion, 
that  the  obligee  had  no  remedy  to  re- 
cover the  wheat  tendered.  For  lie  says, 
'  and  the  reason  wherefore  in  the  case 
of  an  obligation  for  the  jiaymcnt  of 
money,  the  sum  mentioned  in  the  con- 
dition is  not  lost  by  the  tender  and  re- 
fusal, is  not  only  for  that  it  is  a  duty 


and  parcel  of  the  obligation,  and  thc7-e- 
fore  is  not  lost  by  the  tender  and  refusal, 
but  also  for  that  the  obligee  hath  remedy 
by  law  for  tlic  same.'  This  remark  has 
no  point  whatever,  unless  the  wheat  is 
to  be  considered  as  lost  by  the  tender 
and  refusal.  In  the  case  of  an  obliga- 
tion or  contract  for  the  delivery  of  spe- 
cific articles,  &c.,  the  duty  is  not  dis- 
charged by  a  tender  or  refusal,  because 
any  title  to  the  thing  tendered  vests  in 
him  who  refuses  it,  for  in  that  case  the 
condition  or  contract  must  be  consider- 
ed as  performed,  and  siiould  be  so  plead- 
ed, but  because  the  defendant  having 
done  all  in  his  power  to  perform  the 
condition  or  contract,  and  having  been 
prevented  by  the  fault  of  the  other  party, 
the  non-performance  is  by  law  excused. 
This  is  evident  from  many  cases  that 
are  to  be  found  in  the  books."  The 
learned  judge  then  cites  and  comments 
upon  several  cases-  and  continues,  "  It 
is  believed,  that  it  may  with  great  safety 
be  affirmed  that  there  is  nothing  in  the 
Eiujlish  books,  nor  in  the  decisions  of 
our  own  courts,  that  gives  the  least 
countenance  to  the  supposition  that 
when  specific  articles  are  tendered  and 
refused,  the  property  still  passes.  It 
seems,  however,  that  a  different  opinion 
formerly  prevailed  in  Connecticut.  1 
Eoot,  55  and  443  ;  1  Swift's  Syst.  404. 
But  it  seems  to  have  been  formed  with- 
out due  consideration,  and  stands  wholly 
unsupported  by  authority.  Nor  are  we 
able  to  learn  either  from  Swift  or  Eoot, 
the  grounds  of  the  decision.  It  also 
seems  from  some  remarks  made  by 
individual  judges  in  the  case  of  Slin- 
gerland  r.  Morse,  8  Johns,  474  ;  and  in 
Coit  &  Al.  V.  Houston,  3  Johns.  Cas. 
242,  that  an  opinion  is  entertained  in 
New  York  that  property  may  pass  upon 
a  tender  and  refusal.  Eut  in  neither  of 
those  cases  was  that  the  point  before 
the  court,  and  although  we  entertain  the 
highest  respect  for  the  talents  and  legal 
learning  of  the  judges  who  seem  to  have 
intimated  such  an  oinnion,  we  cannot 
rely  upon  their  obiter  dicta  on  points  not 
before  them,  in  ojiposition  to  the  wiiole 
current  of  authorities  from  tlic  earliest 
times.  It  has  also  been  contended  on 
the  jiart  of  the  plaintiff,  that  there  is  a 
strong  analogy  between  this  case  and 
the  case  of  an  abandonment  upon  a 


C^.  III.] 


DEFENCES. 


167 


tels  passes  by  the  tender  ;  and  on  the  other  hand,  if  the  pro- 
perty passes  by  the  tender,  the  contract  is  discharged.  And 
therefore,  whenever  a  tender  would  discharge  the  contract, 


policy  of  insurance,  when  the  property 
often  vests  in  tlie  underwriter  notwith- 
standing^ his  refusal  to  accept  the  aban- 
donment. But  we  think  that  the  an- 
swer which  the  defendant's  counsel  has 
given  to  this  argument  is  decisive,  and 
that  the  vesting  of  property  in  case  of 
an  abandonment  dej)cnds  upon  circum- 
stances peculiar  to  that  species  of  con- 
tract, and  that  the  supposed  analogy 
fails  altogether.  Thus  it  seems  that 
the  doctrine  for  which  the  plaintiff  con- 
tends is  not  only  wholly  unsupported 
by  any  adjudged  case,  which  is  entitled 
to  have  any  weight  in  the  decision,  but 
stands  contradicted  by  the  whole  cur- 
rent of  authorities  from  the  earliest  to 
the  present  time.  The  principle  to  be 
deduced  from  adjudged  cases  of  the 
most  unquestionable  authority,  is,  un- 
doubtedly, that  a  tender  and  refusal  of 
specific  articles  transfers  no  property. 
Nor  does  this  principle  rest  upon  rea- 
sons in  any  degree  unsatisfactory,  nor 
can  it  prejudice  any  party  to  whom  a 
tender  is  made,  provided  he  takes  care 
to  be  well  instructed  as  to  his  rights  and 
duties,  and  to  act  with  good  faith.  In 
the  present  case  when  the  leather  was 
tendered,  the  plaintift'had  a  right  to  take 
a  reasonable  time  to  examine  the  ten- 
der, and  to  ascertain  the  quality  and 
quantity  of  the  leather  tendered.  If 
upon  examination  he  found  the  tender 
suilicient,  it  was  his  duty  to  have  ac- 
cepted it ;  but  if  on  the  contrary  he 
found  it  deliciont,  he  had  a  right  to  re- 
ject it,-aud  demand  of  the  defendant  a 
fulfilment  of  the  contract  according  to 
its  terms ;  but  as  on  the  one  hand  the 
defendant  was  bound  at  his  peril  to 
make  a  sufficient  tender,  so  on  the  other 
hand  the  plaintiff  refused  the  tender,  if 
sufficient,  at  his  own  peril.  This  was 
no  hardship  upon  the  plaintit}".  He 
could  as  easily  ascertain  whether  the 
tender  was  sufficient  as  the  defendant 
could.  The  advantage  which  the  de- 
fendant lias  in  being  discharged  from 
his  obligation,  and  still  keeping  the 
leather,  is  merely  accidental.  When 
the  plaintiff  wrongfully  rejected  the 
leather,  the  defendant  might  have  left 
it  in  the  street,  and  have  suffered  it  to 
have  been  lost  or  destroyed,  and  in  so 
doing  he  would  have  done  no  injury  to 


the  plaintiff;  but  the  law  did  not  com- 
pel him  to  do  this,  which  would  have 
been  an  idle  waste  of  projjerty,  but  per- 
mitted him  to  keep  it ;  nor  did  the  law 
impose  the  duty  upon  the  defendant  of 
being  at  the  trouble  and  expense  of  keep- 
ing it  for  the  use  of  the  plaintiff,  who  had 
refused  it,  but  permitted  him  to  have 
it  to  his  own  use.  And  there  is  no  rea- 
son why  the  plaintiff  should  now  re- 
cover the  value  of  the  leather  from  the 
defendant,  any  more  than  there  would 
have  been,  had  the  defendant  left  the 
leather  in  the  street,  and  permitted  it  to 
be  destroyed,  as  it  might  have  been,  if 
he  had  not  kept  possession  of  it.  There 
may  be  more  hazard  in  rejecting  a  suf- 
ficient tender  than  in  not  making  a 
sufficient  one,  because  the  one  is  done 
at  the  peril  of  losing  the  debt,  the  other 
is  only  at  the  peril  of  being  compelled 
to  pay  the  money  in  lieu  of  specific 
articles.  But  the  plaintiff  has  no  rea- 
son to  complain  of  this  inequality,  for 
it  was  his  own  choice  to  take  the  hazard, 
and  he  has  lost  his  debt  by  his  own  act. 
In  this  case  the  dispute  between  the 
parties  seems  to  have  been  whether  the 
cjuantity  of  leather  was  sufficient,  and 
that  question  depended  upon  what  was 
the  cash  price  of  leather.  Had  the  plain- 
tiff been  w^ell  advised,  he  would  not 
have  rejected  the  tender  at  the  risk  of 
his  debt,  but  would  have  received  the 
leather  and  indorsed  the  quantity  upon 
the  note.  He  might  then  have  brought 
an  action  upon  the  note  to  recover  the 
balance,  and  have  settled  the  question 
without  incurring  any  hazard  but  that 
of  costs.  But  he  saw  fit  to  take  a  differ- 
ent course.  Tliis  was  probably  done 
through  an  innocent  mistake,  and  if  so, 
it  was  his  misfortune,  but  cannot  alter 
the  law.  However  innocent  the  mis- 
take may  have  been  he  has  no  right  to 
ask  an  indemnity  from  the  defendant, 
who  seems  to  have  been  in  all  things 
equally  innocent.  And  as  he  chose  to 
exact  of  the  defendant  a  rigid  compli- 
ance with  the  terms  of  the  contract,  he 
must  not  complain  if  the  dcfcnilant  now 
choses  to  shield  himself  under  tiie  rigid 
rules  of  the  law."  But  this  decision 
has  not  been  approved  of,  and  it  pro- 
bably would  not  now  be  considered  as 
law  in  any  jurisdiction. 


168 


THE   LAW   OF   CONTRACTS. 


PART  il. 


it  must  be  so  complete  and  perfect,  as  to  vest  the  property 
in  the  promisee,  and  give  him  instead  of  the  jus  ad  rem  which 
he  loses,  an  absolute  j»s  in  re.  (q) 


3,   Of  the  hind  of  2)erformance. 

When  the  defence  against  an  action  on  a  contract  is  per- 
formance, the  question  sometimes  arises  whether  the  pei*- 
formance  relied  upon  has  been  of  such  a  kind  as  the  law 
requires.  The  only  general  rule  upon  this  point  is,  that  the 
performance  must  be  such  as  is  required  by  the  true  spirit 
and  meaning  of  the  contract,  and  the  intention  of  the  parties 
as  expressed  therein.  A  mere  literally  accurate  performance 
may  wholly  fail  to  satisfy  the  true  purpose  of  the  contract; 
and  such  a  performance  is  not  enough,  if  the  true  purpose  of 
the  contract  can  be  gathered  from  it,  according  to  the  estab- 
lished rules  of  construction.  Thus  a  contract  for  the  convey- 
ance of  real  estate,  is  satisfied  only  by  a  valid  conveyance 
with  good  title,  (r)  But  if  the  contract  expresses  and  defines 
the  exact  method  of  conveyance,  and  that  method  is  accu- 
rately followed,  although  no  good  title  passes,  this  is  a  suffi- 


(7)  Questions  often  arise  as  to  the 
qualitji  of  articles  to  be  tendered.  Ge- 
nerally a  contract  to  pay  a  certain  sum 
in  the  wares  of  a  particular  trade,  means 
such  as  are  entire,  and  of  the  kind  and 
fashion  in  ordinary  use,  and  not  such 
as  are  antifjuated  or  unsalable.  Den- 
nett V.  Short,  7  Greenl.  (Bennett's  Ed.) 
150.  The  tender,  to  be  valid,  must  be 
of  such  quality  and  kind  of  the  articles 
as  would  be  necessary  to  make  a  legal 
sale.  Thus  when  a  statute  required  all 
leather  offered  for  sale  to  be  stamped 
G.  or  B.,  a  tender  of  unstamped  leather 
is  not  suflicient.  Elkins  v.  Parkhurst, 
17  Vermont,  105.  So  if  the  law  re- 
quires the  article  to  be  packed  in  a  cer- 
tain manner.  Clark  V.  Pinney,  7.  Cow- 
en,  681.  A  contract  to  deliver  good 
coarse  salt  is  fulfilled  by  a  delivery  of 
coarse  salt  of  a  medium  quality,  of  the 
kind  generally  used  at  the  place  and 
time  of  delivery.  Goss  v.  Turner,  21 
Vermont,  437.  In  Crane  v.  Roberts, 
5  Greenl.  (Bennett's  Ed.)  419,  there 
was  a  contract  to  deliver  such  hay  as  B. 


should  say  was  "  mercJtcmtable."  That 
which  he  did  deliver,  B.  called  "  a  fair 
lot,  say  merchantable,  not  quite  so  good 
as  I  expected  ;  the  outside  of  the  bun- 
dles some  damaged  by  the  weather." — 
Held  no  compliance  with  the  contract. 

(r)  Smith  v.  Hayncs,  9  Greenl.  (Ben- 
nett's Ed.)  128.  Here  the  agreement 
was  "  to  sell  certain  land."  It  was  licld 
to  be  an  agreement  also  to  "  convey  " 
the  land  ;  but  it  was  not  determined 
whether  the  deed  should  contain  a  war- 
ranty or  not.  In  Brown  r.  Gammon, 
14  Maine,  27G,  the  contract  was  "  to 
convey  a  certain  tract  of  land,  the  title 
to  be  a  good  and  suflicient  deed  ;  "  and 
this  was  held  to  be  a  contract  to  give  a 
good  title  by  deed.  Lawrence  v.  Dole, 
11  Vermont,  549,  bears  upon  the  same 
])oint.  It  was  there  held  that  if  the 
contract  be  "  to  convey  the  land  by  a 
deed  of  conveyance,"  for  a  stipulated 
price,  this  is  not  fulfilled  i)y  executing  a 
deed  of  conveyance  merely.  The  party 
must  be  able  to  convey  such  a  title  as 
the  other  party  had  a  right  to  expect, 


en.  III.] 


DEFENCES. 


169 


cient  performance,  (s)  But  if  the  expression  is,  "  a  good  and 
sufficient  deed,"  the  deed  must  not  only  be  good  and  suffi- 
cient of  itself,  but  it  must  in  fact  convey  a  good  title  to  the 
land,  because  otherwise  it  would  not  be  sufficient  for  the 
purpose  of  tke  contract,  (t) 

If  the  contract  be  in  the  alternative,  as  to  do  a  thing  on 
one  day  or  another,  or  in  one  way  or  another,  the  right  of 
election  is  with  the  promisor  if  there  be  nothing  in  the  con- 
tract to  control  the  presumption,  (it)  It  is  an  ancient  rule, 
that  "  in   case  an  election  be  given  of  two  several  things, 


and  this  is  to  be  determined  by  the  fair 
import  of  the  terms  used  with  refer- 
ence to  the  subject-matter.  Redjield,  J., 
said,  "  The  contract  is,  not  to  execute 
a  deed  merely,  but  to  convey,  by  a  deed, 
&c.,  a  certain  tract  of  land.  Could  lan- 
guage be  more  explicit  ?  What  is  im- 
plied in  conveying  land  1  Surely,  that 
the  title  shall  be  conveyed."  But  it  has 
been  held  in  Ohio  that  a  contract  for  a 
good  title  was  discharged  by  a  tender  of 
a  quitclaim  deed,  the  grantor  having 
the  whole  title.  Pugh  v.  Chesseldine, 
11  Ohio,  109. 

(s)  Hill  V.  Hobart,  16  Maine,  164; 
per  Redjield,  J.,  in  Lawrence  v.  Dole, 
11  Verm.  554.  In  Tinney  v.  Ashley,  15 
Pick.  546,  the  obligors  undertook  to 
execute  and  deliver  a  "  good  and  suffi- 
cient warranty  deed  "  of  certain  land  ; 
and  the  court  held  that  the  words  "  good 
and  sufficient "  were  to  be  applied  to 
the  deed  and  not  to  the  title,  and  that 
the  condition  was  performed  by  making 
and  delivering  a  deed  good  and  suffi- 
cient in  point  of  form  to  convey  a  good 
title,  the  remedy  for  any  defect,  being 
upon  the  covenant  of  warranty  in  the 
deed ;  but  see  next  note. 

[t)  Tremain  v.  Liming,  Wright,  644. 
It  was  held  that  the  words  "  good  and 
sufficient  deed"  meant  a  deed  of  war- 
ranty conveying  a  fee-simple  ;  and  a 
deed  without  warranty,  and  not  signed 
by  the  obligor's  wife,  was  held  no  com- 
pliance with  the  contract.  In  Hill  v. 
Hobart,  16  Maine,  164,  the  contract 
was  to  make  and  execute  "  a  good  and 
sufficient  deed  to  convey  the  title;"  this 
was  held  not  to  be  performed  unless  a 
good  title  passed  by  the  deed.  In  this 
case  also  the  distinction  in  the  text  was 
recognized,  that  if  the  contract  is  for  the 
conveyance  of  land,  or  for  a  title  to  it, 

VOL.  II.  15 


performance  can  be  made  only  by  the 
conveyance  of  a  good  title.  But  when 
it  stipulates  only  for  a  deed,  or  for  a 
conveyance  by  a  deed  described,  it  is 
performed  by  giving  such  a  deed  as  is 
described,  however  defective  the  title 
may  be.  That  the  words  "  good  and 
sufficient,"  when  used  as  descriptive  of 
a  deed,  have  reference  to  the  title  to  be 
conveyed,  and  not  to  the  mere  form 
of  the  deed,  see  Fletcher  v.  Button, 
4  Comst.  396 ;  Clute  v.  Robinson,  2 
Johns.  595  ;  Judson  v.  Wass,  11  Johns. 
525  ;  Stow  v.  Stevens,  7  Verm.  27.  But 
see  Aiken  v.  Sanford,  5  Mass.  494 ; 
Gazley  v.  Price,  16  Johns.  268;  Parker 
V.  Parmele,  20  id.  130;  Stone  i'.  Fowle, 
22  Pick.  166.  See  also  Tinney  v.  Ash- 
ley, 15  Pick.  546,  cited  in  preceding 
note.  In  this  last  case  the  court  lay 
considerable  stress  on  the  fact  that  the 
deed  was  to  contain  a  covenant  of  war- 
ranty, which  showed  that  the  party  in- 
tended to  look  at  that  as  his  muniment 
of  title. 

(m)  Smith  V.  Sanborn,  11  Johns.  59; 
Lay  ton  v.  Pearce,  Dougl.  16,  per  Lord 
Mansfield;  Small  v.  Quincy,  4  Greenl. 
(Bennett's  ed.)  497.  In  this  case  A. 
contracted  to  deliver  "  from  one  to  three 
thousand  bushels  of  potatoes,"  and  he 
was  allowed  the  right  to  deliver  any 
quantity  ho  chose  within  the  limits  of 
the  contract.  And  sec  McNitt  v.  Clark, 
7  Johns.  465;  13  Edw.  IV.,  4  pi.  12. 
If  the  contract  is  to  do  one  of  two  things 
by  a  given  day,  the  debtor  has  until  that 
day  to  make  his  election;  but  if  he  suf- 
fer that  day  to  pass  without  performing 
cither,  his  contract  is  broken  .and  his 
right  of  election  gone.  Choice  v.  Mose- 
ley,  1  Bailey,  136  ;  McNitt  v.  Clark,  7 
Johns.  465. 


170 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


always  he  that  is  the  first  agent,  and  which  ought  to  do  the 
first  act,  shall  have  the  election."  (v)  But  this  same  rule 
may  give  the  election  to  the  promisee,  if  something  must 
first  be  done  by  him  to  create  the  alternative,  (w)  If  one 
branch  of  the  alternative  becomes  impossible,*  so  that  the 
promisor  has  no  longer  an  election,  this  does  not  destroy  his 
obligation,  unless  the  contract  expressly  so  provide  ;  but  he 
is  now  bound  to  perform  the  other  alternative,  (x)  An 
agreement  may  be  altogether  optional  with  one  party,  and 
yet  binding  on  the  other,  (y) 

4.  Of  part  performance. 

A  partial  performance  may  be  a  defence,  pro  tanto,  or  it 
may  sustain  an  action,  pro  tanto  ;  but  this  can  be  only  in 
cases  where  the  duty  to  be  done  consists  of  parts  which  are 
distinct  and  severable  in  their  own  nature,  [z)  and  are  not 


{v)  Co.  Litt.  145,  a. 

{w)  Chippendale  r.  Thurston,  4  C.  & 
P.  98. 

(.r)  Stevens  v.  Webb.  7   C.  &  P.  60. 

(ij)  Thus,  where  A.  agreed  to  deliver 
to  B.  by  the  1st  ofMay,  from  700  to  1,000 
barrels  of  meal,  for  which  B.  agreed  to 
pay  on  delivery  at  the  rate  of  six  dol- 
lars per  barrel,  and  A.  delivered  700 
barrels,  and  also  before  the  day  tender- 
ed to  B.  300  barrels  more,  to  make  up 
the  1,000  barrels,  which  B.  refused;  it 
was  held  that  B.  was  bound  to  receive 
and  pa}'  for  the  whole  1,000  barrels  ; 
the  delivery  of  any  quantity  between 
700  and  1,000  barrels,  being  at  the 
option  of  A.  only,  and  for  his  bene- 
fit- Deaborough  v.  Neilson,  3  Johns. 
Gas.  81. 

{z)  Thus  in  an  entire  contract  of 
sale,  or  manufacture  of  a  large  quantity 
of  an  article  or  articles,  at  an  agreed 
price  for  each,  the  current  of  authorities 
hold  that  a  delivery  and  acceptance  of 
part,  gives  a  right  to  recover  for  that 
part,  deducting  whatever  damages  the 
other  party  sustained  by  the  non-fulfil- 
ment of  the  contract.  Bowkcr  v.  Iloyt, 
18  Pick.  555,  a  sale  of  1,000  bushels  of 
corn  at  85  cents  per  bushel.  Tlie  plain- 
tiff delivered  only  410  bushels,  and  refus- 
ed to  deliver  tlie  remainder;  the  vendee 
kept  what  lie  had  received,  and  was  held 


bound  to  pay  for  it,  deducting  his  da- 
mages. Oxendale  v.  Wetherell,  9  B.  & 
C.  386,  was  a  sale  of  250  bushels  of 
wheat  at  85  cents  per  bushel.  The  ven- 
dor delivered  only  130  bushels,  when 
corn  having  advanced,  he  refused  to  de- 
liver the  remainder.  The  Jury  found 
the  contract  to  be  entire,  but  as  the  vendee 
had  retained  the  corn  delivered,  until 
after  the  expiration  of  the  time  for  the 
completion  of  tiie  contract,  the  whole 
Court  of  King's  Bench  held  him  liable 
for  the  same.  Champion  r.  Short,  1 
Campb.  53,  is  to  the  same  effect.  There 
tlic  defendant,  who  resided  at  Salisbury, 
ordered  from  the  plaintiff,  a  wholesale 
grocer  in  London,  "  half  a  chest  of 
I'rench  plums,  two  hogsheads  of  raw 
sugar,  and  100  lumps  of  white  sugar; 
to  be  all  sent  down  without  delay." 
The  plums  and  raw  sugar  arrived  nearly 
as  soon  as  the  course  of  conveyance 
would  permit ;  but  the  white  sugar  not 
coming  to  hand,  the  defendant  counter- 
manded it,  and  gave  notice  to  the  jilain- 
tiff  that  as  he  had  wished  to  iiave  the 
two  sorts  of  sugar  togctlicr,  or  not  at 
all,  he  would  not  accejjt  of  the  raw.  The 
plums  the  defendant  used,  and  this  ac- 
tion having  been  brought  to  recover 
the  price  of  the  j)lums  and  the  raw 
sugar,  he  tendered  the  price  of  the 
plums ;  and   at  the  trial  the  question 


CU.  III.] 


DEFENCES. 


171 


bound  together  by  expressions  giving  entirety  to  the  contract. 
It  is  not  enough  that  the  duty  to  be  done  is  itself  severable, 
if  the  contract  contemplates  it  only  as  a  whole,  (a) 


was  whether  he  was  liable  to  pay  for 
the  sugar.  And,  per  Lord  El/enliorougk, 
"  Where  several  articles  arc  ordered  at 
the  same  time,  it  docs  not  follow,  al- 
thougli  there  be  a  separate  price  lixed 
for  eacii,  that  they  do  not  form  one  gross 
contract.  I  may  wish  to  have  articles 
A,  B,  C,  and  I),  all  of  different  sorts  and 
of  different  values  ;  but  without  having 
every  one  of  tliem  as  I  direct,  the  rest 
may  be  useless  to  me.  I  therefore  bar- 
gain for  tliem  jointly.  Here,  had  the 
defendant  given  notice  that  he  would 
accept  neither  the  plums  nor  the  raw 
sugar,  as  without  the  white  sugar  they 
did  not  form  a  proper  assortment  of 
goods  for  his  shop,  he  miglit  not  have 
been  liable  in  the  present  action  ;  but 
he  has  completely  rebutted  the  presump- 
tion of  a  joint  contract,  including  all 
the  articles  ordered,  by  accepting  the 
plums,  and  tendering  payment  for  them. 
Therefore,  if  the  raw  sugar  was  of  the 
quality  agreed  on,  and  was  delivered  in 
reasonable  time,  lie  is  liable  to  the  plain- 
tiff for  the  price  of  it."  And  see  Barker 
V.  Sutton,  1  Campb.  55,  n.  Bragg  v. 
Cole,  6  Moore,  114;  Shaw  v.  Badger, 
12  S.  &  R.  275,  recognize  the  same  rule. 
In  Booth  r.  Tyson,  15  Verm.  515,  the 
contract  was  to  mould  for  the  defend- 
ant two  hundred  stove  patterns  ;  only 
a  part  was  ever  made,  which  the  de- 
fendant used  and  disposed  of,  as  they 
were  made.  The  plaintiff  gave  up  the 
contract  without  completing  it ;  but  he 
was  allowed  to  recover  on  a  quantum 
meruit,  deducting  the  damages  to  the 
other  party.  In  Mavor  v.  Pyne,  3  Bing. 
285,  also,  it  was  held  that  a  contract  to 
publish  a  work  in  numbers,  at  so  much  a 
number,  meant  that  each  number  should 
be  paid  for  as  delivered.  Shipton  v. 
Casson,  5  B.  &  C.  378,  holds  also  that 
an  acceptance  of  part  under  an  entire 
contract,  gives  a  right  of  action  for  such 
part,  although  in  accordance  with  the 
suggestions  in  that  case  it  may  be  ques- 
tioned whether  the  plaintiff  can  sustain 
an  action  for  part,  until  after  the  expi- 
ration of  the  time  for  the  delivery  of  the 
ichole ;  for  perhaps  the  vendee  may  con- 
clude to  return  what  he  has  received 
unless  the  whole  is  delivered,  whicli 
cannot  be  known  until  the  time  has  ex- 
pired.    See   Waddington   v.    Oliver,   5 


B.  &  P.  61.  The  New  York  Courts 
adopt  a  different  doctrine,  and  hold  that 
part  performance,  although  accepted, 
furnishes  no  ground  of  recovery  pro 
tanto,  and  repudiate  the  doctrine  of  Ox- 
endale  v.  Wetherell,  supra.  Champlin 
V.  Rowley,  13  Wend.  258,  18  id.  187; 
Mead  v.  Dcgolyer,  16  Wend.  632 ; 
Paige  V.  Ott,  5  Denio,  406 ;  Knight 
V.  Dunlop,  4  Barb.  36;  and  see  ante, 
p.  35,  n.  ((/). 

[a)  Tlic  mostfrequent  cases  where  the 
entirety  of  a  contract  is  sustained  as  a 
good  defence  in  law  to  an  action  for 
part  performance,  arc,  perhaps,  contracts 
of  labor  and  service  for  a  Jixed  time. 
Here  the  current  of  authorities  agree 
that  part  performance  gives  no  right  to 
part  compensation,  unless  the  fulfil- 
ment of  the  contract  is  prevented  by  the 
act  of  the  obligee.  Cutter  v.  Powell,  6 
T.  II.  320,  is  well  known  as  the  leading 
case  on  this  subject.  There  a  sailor 
had  taken  a  note  from  the  master  of  a 
vessel  to  pay  him  30  guineas,  "  provid- 
ed he  proceeded,  continued,  and  did  his 
duty  as  second  mate  from  Jamaica  to 
Liverpool."  The  sailor  died  on  the  voy- 
age, and  his  administrator  was  not  al- 
lowed to  recover  anything  for  the  ser- 
vice actually  performed.  But  as  the 
sailor  was  by  the  contract  to  receive 
about  four  times  as  much  provided  he 
completed  the  voyage  as  was  generally 
paid  for  the  same  service  without  any 
special  contract,  this  fact  might  have 
had  much  influence  upon  the  court  in 
determining  this  contract  to  be  entire, 
and  not  apportionable.  But  in  this 
country,  sickness  or  death  of  the  laborer 
has  been  frequently  held  a  sufficient  ex- 
cuse for  non-performance  of  the  whole 
contract,  and  the  laborer,  or  iiis  admin- 
istrator may  recover  for  the  service  ac- 
tually rendered.  Fcnton  v.  Clark,  11 
Vermont,  557  ;  Dickey  v.  Linscott,  20 
Maine,  453  ;  Fuller  v.  Brown,  11  Mete. 
440.  The  same  rule  has  been  applied 
where  tlie  non-performance  was  caused 
by  the  act  of  law.  Jones  v.  Judd,  4 
Comst.  412.  See  ante,  vol.  1,  p.  524, 
n.  (o).  Although  in  the  same  courts 
the  general  rule  is  fully  recognized,  and 
constantly  acted  upon,  that  part  per- 
formance of  such  a  contract  gives  no 
right  to  part  payment,  if  the  non-per- 


172  THE  LAW   OF   CONTRACTS.  [PART  II. 

If  money  is  to  be  paid  when  work  is  done,  and  an  action 
be  brought  for  the  money,  non-performance  of  the  work  is  of 
course  a  good  defence  ;  but  if  there  is  a  part  performance, 
and  this  is  a  performance  of  the  whole  substance  of  the  con- 
tract, and  an  omission  only  of  what  is  incidental  and  unim- 
portant, (b)  it  is  a  sufTicicnt  performance ;  but  the  contract 
may  expressly  and  in  especial  terms  provide  that  these 
formal,  incidental  and  non-essential  parts  shall  be  done,  and 
then  they  are  made  by  the  parties,  matters  of  substance. 
Thus,  if  a  time  be  set  in  which  certain  work  is  to  be  done, 
it  is  not  in  general  so  far  of  the  substance  of  the  contract, 
that  if  the  work  be  done,  but  not  until  some  days  later,  no 
compensation  will  be  recovered  ;  but  an  action  for  the  price 
will  be  sustained,  leaving  the  defendant  to  show  any  injury 
he  has  sustained  by  the  delay,  and  use  it  in  reduction  of 
damages,  by  way  of  set-off,  or  to  sustain  a  cross  action 
according  to  the  circumstances  of  the  case,  (c)  But  if  the 
parties  see  fit  to  stipulate  in  unequivocal  language,  that  no 
money  shall  be  paid  for  the  work  unless  it  is  done  within  a 
fixed  time,  both  parties  will  be  bound  by  their  agreement,  {d) 

formance  is  voluntary  on  the  part  of  the  substantial  bona  Jide  compliance  is  all 

plaintiff,  and  not  caused  by  the  defend-  that  is  necessary.     And  see  ante,  p.  35, 

ant  or  by  an  act  of  God.     See  St.  Al-  n.  (d). 

bans  St.  Co.  v.  Willdns,  8  Vermont,  54.  (c)  Thus  in  Lucas  v.  Godwin,  3  Bing. 

Hair  v.  Bell,  6  Vermont,  35  ;  Philbrook  N.  C.  737,  A.  contracted  to  finish  some 

V.  Belknap,  6  Vermont,  383  ;  Brown  v.  castings  by  the  10th  of  October.     They 

Kimball,  12  Vermont,  617;   Ripley  v.  were  not  finished  until  the  15th.     The 

Chipman,  13  Vermont,   268;  Stark  v.  defendant  then  accepted  them,  and  he 

Parker,  2  Pick.  267  ;  Olrastead  r.  Bcalc,  was  held  Ijound  to  pay  on  a  quanlum 

19  Pick.  528.     And  see  ante,  vol.  1,  p.  valebant.     See  also  Porter  t;.  Stewart,  2 

522,  n.  (/),  and  ante,  p.  35,  n.  [d).     So  Aikens,  47  ;  Warren  v.  Mains,  7  Johns, 

if  rent  is  to  be  paid  quarterly,  and  dur-  476  ;  Lindsey  v.  Gordon,  13  Maine,  60  ; 

ing   a   quarter  the  lessee   delivers  up.  Smith  w.  Gugerty,  4  Barbour,  614.    But 

and  the  lessor  accepts  possession  of  the  in  most  or  all  of  these  cases  it  is  to  be 

premises,  without  anything  said  about  noted  that  tlierehad  been  an  acceptance 

rent  pro  rata,  none  is  payable.     Grim-  by  the  defendant  after  the  time  stipulat- 

man  f.  Lcgge,  8  B.  &  C.  324.  ed   in.  the   contract.     See   ante,   p.  35, 

(b)  TIius,  in  Gilman  v.  Hall,  II  Ver-  n.  {d). 

mont,  510,  A.  contracted  to  build  $60  (d)  Kemp  v.  Humphreys,  13  111.  573; 

worth  of  stone  wall  for  B.  of  a  given  Westcrman  v.  Means,  12  Pcnn.  St.  97  ; 

length,  heif/ht,  and  thickness.     lie  built  a  Liddel  v.  Sims,  9  Sni.  &  Marsli.  596  ; 

wall  worth   860,  but  in  some  ])arts  it  Tyler  v.  McCardle,  id.  230.     In  Snced 

was  not  of  the  given  height,  the  defici-  r.'Wiggins,  3  Geo.  94,  A.  recovered  two 

ency  being  made  up  in  extra  length.    lie  judgments  against  B.,  wiio  being  about 

was  allowed  to  recover  on  a  quantum  to  appeal,  A.  agreed  in  writing  tliat  if  he 

meruit,  on  the  ground  that  there   had  would  not  a])i)eal,  he.  A.,  would  give 

been  a  .suistoM^a/ compliance.     See  also  certain   time   for   tlie   payment   of  the 

Chambers  i'.  Jaynes,  4  Barr,  39,  that  a  amount  due  by  instalments,  "  provided 


CH.  III.] 


DEFENCES. 


173 


Although  even  then  the  promisee  would  not  be  permitted  to 
receive  and  retain  the  work  after  the  due  time  of  delivery, 
and  make  no  compensation.  Either  his  acceptance  would 
amount  to  a  waiver  of  the  condition  of  time,  or  the  other 
party  might  have  his  action  on  a  quantum  meruit. 


5.  Of  the  time  of  performance. 

If  the  contract  specifies  no  time,  the  law  implies  that  it 
shall  be  performed  within  a  reasonable  time  ;  (e)  and  will 
not  permit  this  implication  to  be  rebutted  by  extrinsic  testi- 
mony going  to  fix  a  definite  term,  because  this  varies  the 
contract.  (/)  What  is  a  reasonable  time  is  a  question  of 
law.  [g-)     And  if  the  contract  specify  a  place  in  which  arti- 


that  if  any  of  the  instalments  should  not 
be  paid  at  the  time  specified,  then  A. 
should  proceed  with  his  execution." 
Held,  that  time  was  of  the  essence  of 
the  contract ;  and  that  B.  having  failed 
to  pay  one  of  the  instalments  when  due, 
was  not  entitled  to  relief  in  equity. 

(e)  Sansom  v.  Ehbdes,  8  Scott,  544. 
In  this  case  the  defendant  put  up  pro- 
perty for  sale  by  public  auction  on 
the  18th  September,  subject  (amongst 
others)  to  the  following  conditions — 
that  the  purchaser  should  pay  down  a 
deposit  of  10  per  cent,  and  sign  an 
agreement  for  payment  of  the  remainder 
of  the  purchase-money  on  or  before  the 
28th  November  ;  that  a  proper  abstract 
should  be  delivered  within  fourteen  days 
from  the  day  of  the  sale,  and  a  good  title 
deduced  at  the  vendor's  expense,  hav- 
ing regard  to  the  conditions ;  the  con- 
veyance to  be  prepared  by  and  at  the 
expense  of  the  purchaser,  and  left  at  the 
office  of  the  vendor's  solicitors  for  exe- 
cution on  or  before  the  10th  Novem- 
ber; and  that  all  objections  to  the  title 
should  be  communicated  to  the  vendor's 
solicitoi-s  within  twenty-eight  days  after 
the  delivery  of  the  abstract.  In  an  ac- 
tion by  the  purchaser  to  recover  back 
the  dei)Osit  on  the  ground  that  the  ven- 
dor had  not  deduced  a  good  title  by  the 
28th  of  November: — lltid,  on  special 
demurrer,  that  the  declaration  was  bad 
for  not  averring  that  a  reasonable  time 
for  deducing  a  good  title  had  elapsed 
before  the  commencement  of  the  ac- 

15* 


tion,  the  conditions  of  sale  naming  no 
specific  time  for  that  purpose.  Tindal, 
C.  J.,  said: — "There  does  not  ap- 
pear on  the  face  of  the  declaration  to 
have  been  any  express  stipulation  that 
the  vendor  should  deduce  a  good  title 
by  any  specific  time  ;  and,  if  no  express 
time  was  stipulated,  the  law  will  in  this, 
as  in  every  other  case,  imply  that  a  rea- 
sonable time  was  intended.  Inasmuch, 
however,  as  it  is  not  alleged  in  the  de- 
claration that  a  reasonable  time  for 
deducing  a  good  title  had  elapsed,  I 
think  the  demurrer  must  prevail,  and 
consequently  that  the  defendant  is  en- 
titled to  judgment."  Atwood  v.  Cobb, 
1 6  Pick.  227  ;  Roberts  v.  Beatty,  2  Penn. 
63;  Philips  v.  Morrison,  3  Bibb.  105; 
Cocker  v.  Franklin  Man.  Co.,  3  Sum- 
ner, 530  ;  Atkinson  v.  Brown,  20  Maine, 
67.     And  see  ante,  p.  47,  n.  (iv). 

(/)  Shaiv,  C.  J.,  in  Atwood  v.  Cobb, 
16  Pick.  227.  Unless  it  be  in  connection 
with  other  facts  as  tending  to  show  what 
is  a  reasonable  time  under  the  circum- 
stances of  the  case.  Cocker  v.  Frank- 
lin Man.  Co.,  3  Sumner,  530  ;  Ellis  v. 
Thompson,  3  M.  &  W.  445.  And  sec 
ante,  p.  G5,  n.  {w). 

[g)  Stoddcn  v.  Harvey,  Cro.  Jac. 
204,  where  the  court  lidd  that  the  exe- 
cutor of  a  lessee  for  life  had  a  reasonable 
time  after  his  death  to  remove  his  goods, 
and  Uiat  si.\  days  was  reasonable.  So  in 
Ellis  V.  Paige,  1  Pick,  43,  it  was  consi- 
dered as  a  question  for  the  court,  what 
was  a  reasonable  time  for  a  tenant  at 


174 


THE  LAW   OF   CONTRACTS. 


[part  II. 


clcs  shall  be  delivered,  but  not  a  time,  this  means  that  they 
are  deliverable  on  demand,  but  the  demand  must  be  sufficient 
to  enable  the  promisor  to  have  the  articles  at  the  appointed 
place  with  reasonable  convenience.  (A)  If  any  period,  as  a 
month,  be  expressed,  the  promisor  has  a  right  to  the  whole 
of  it.  There  is,  perhaps,  no  exact  definition,  and  no  precise 
standard  of  reasonable  time.  The  true  rule  must  be,  that 
that  is  a  reasonable  time  which  preserves  to  each  party  the 
rights  and  advantages  he  possesses,  and  protects  each  party 
from  losses  that  he  ought  not  to  suffer.  Thus,  in  a  case  of 
guaranty,  if  the  principal  fails  to  pay  when  he  should,  the 
guarantor  must  be  informed  of  the  failure  within  a  reason- 
able time ;  that  is  to  say,  soon  enough  to  give  him  such 
opportunities  as  he  ought  to  have  to  save  himself  from  loss. 
If  therefore  the  notice  be  delayed  but  a  very  short  time,  but 
by  reason  of  the  delay  the  guarantor  loses  the  opportunity 
of  obtaining  indemnity,  and  is  irreparably  damaged,  he  would 
be  discharged  from  his  obligation.  But  if  the  delay  were  for 
a  long  period,  for  months,  and  possibly  for  years,  and  it  was 
nevertheless  clear  that  the  guarantor  could  have  derived  no 
benefit  from  an  earlier  notice,  the  delay  would  not  impair  his 


will  to  quit  after  receiving  notice,  and 
that  ten  days  was  not  enough.  And 
where  the  maker  of  a  note  deposited 
goods  with  the  holder  to  be  sold  to  pay  it, 
the  court  held  that  a  sale  several  years 
afterwards  was  not  within  a  reasonable 
time.  Porter  v.  Blood,  5  Pick.  54. 
Likewise  in  Doc  v.  Smith,  2  T.  R.  436, 
where  a  lessor  reserved  in  the  lease 
a  right  for  his  son  to  terminate  the 
lease,  and  to  take  possession  upon  com- 
ing of  age,  the  court  determined  that  a 
week  or  a  fortnight  after  coming  of  age, 
would  have  been  a  reasonable  time,  but 
that  a  year  was  not.  On  the  same  prin- 
ciple it  has  been  held  to  be  a  question 
for  the  court  whether  notice  of  aban- 
donment was  given  within  a  reasonable 
time  after  intelligence  of  the  loss,  and 
that  five  days  was  an  unreasonable  de- 
lay. Hunt  V.  Royal  Ex.  Ass.  Co.,  5  M. 
&  S.  47.  In  Attwood  v.  Clark,  2  Greenl. 
(Bennett's  Ed.)  249,  the  purchaser  of  a 
crate  of  ware  was  to  furnish  the  vendor 
with  a  list  of  the  broken  articles ;  and 
it  was  held  that  the  court  must  decide 


whether  it  was  or  was  not  done  in  a 
reasonable  time.  See  also  Murry  v. 
Smith,  1  Hawks,  41  ;  Kingsley  v.  Wal- 
lis,  14  Maine,  57.  It  is  not  always  a 
question  for  the  court  what  is  reasonable 
time ;  for  if  the  facts  are  not  clearly  es- 
tablished, or  if  the  question  of  time  de- 
pends upon  other  controverted  facts,  or 
where  the  motives  of  the  party  enter 
into  the  question,  it  has  been  said  that 
the  whole  must  necessarily  be  submitted 
to  a  jury.  Hill  v.  Ilobart,  IG  Maine, 
1G4 ;  Greene  v.  Dingley,  24  Maine, 
131.  Sec  also  Cocker  v.  Franklin 
Man.  Co.  3  Sumner,  530,  and  Ellis 
V.  Thompson,  3  M.  &  W.  445,  for 
instances  of  reasonable  time  decided 
by  the  Jury.  In  Howe  v.  Hunting- 
ton, 15  Maine,  350,  Shcplij,  J.,  enu- 
merates several  cases  where  this  ques- 
tion is  for  the  jury.  And  sec  ante,  p. 
47,  n.  (.r). 

(A)  llussell  V.  Ormsbec,  10  Vermont, 
274.  And  sec  Bailey  v.  Simonds,  6  N. 
H.  159. 


en.  III.] 


DEFENCES. 


175 


obligation,  (i)  And  if  the  time  be  fixed  by  reference  to  a 
future  event,  the  promisor  has  a  right  to  all  the  time  requi- 
site for  the  happening  of  that  event  in  the  fullest  and  most 
perfect  manner,  (j) 

Whether  in  computing  time,  the  day  when  the  contract  is 
made  shall  be  included  or  excluded,  has  been  much  disputed. 
It  has  been  thought  that  this  might  be  made  to  depend  on 
the  very  words,  as  that  "  in  ten  days "  includes  the  day  of 
the  making,  and  "  in  ten  days  from  the  day  of  the  date  " 
excludes  it,  while  "ten  days  from  the  date"  is  uncertain. 
The  later  cases,  however,  seem  to  establish  the  principle  that 
a  computation  of  this  kind  shall  always  conform  to  the  in- 
tention of  the  parties,  so  far  as  that  can  be  ascertained  from 
the  contract,  aided  by  admissible  evidence,  (/t)     If,  however, 


(i)  Clark  i\  Remington,  11  Mete. 
361  ;  Craft  v.  Isham,  13  Conn.  28  ; 
Thomas  v.  Davis,  14  Pick.  353  :  Talbot 
u.  Gray,  18  Pick.  534. 

(j)  Howe  V.  Huntington,  15  Maine, 
350. 

{k)  Pugh  V.  Leeds,  Cowp.  714,  is  the 
leading  case  upon  this  point.  There, 
one  Godolphin  Edwards  under  a  power 
reserved  in  his  marriage  settlement  to 
lease  for  21  years  in  possession,  but  not 
in  reversion,  granted  a  lease  to  his  only 
daughter  for  21  years,  to  commence 
from  the  day  of  the  date ;  and  tlie  ques- 
tion was  whether  this  was  a  lease  in 
possession  or  in  reversion.  The  court 
held  that  the  word  "  from  "  may  mean 
either  inclusive  or  exclusive,  according 
to  the  context  and  subject-matter ;  and 
should  be  so  construed  as  to  etiectuate 
the  deeds  of  parties  and  not  destroy 
them  ;  and  therefore  that  in  this  case  it 
should  be  construed  as  inclusive.  Lord 
Mansfield,  in  delivering  the  judgment 
of  the  court  said,  "  The  question  is, 
'  whether  this  be  a  lease  in  possession  ? ' 
And  it  turns  upon  this  :  '  Whether  to 
commence  froin  the  day  of  the  date  in 
this  deed,  is  to  be  construed  inclusive,  or 
exclusive  of  the  day  it  bears  date  "? '  I 
will  first  consider  it  as  supposing  this  a 
new  question,  and  that  there  never  had 
existed  any  litigation  concerning  it.  In 
that  light,  the  whole  will  turn  upon  a 
point  of  construction  of  the  particle 
'■froin.''  The  power  requires  no  precise 
form  to  describe  the  commencement  of 
the  lease ;  the  law  requires  no  technical 


form.  All  that  is  required,  is  only 
enough  to  show  that  it  is  a  lease  in 
possession,  and  not  in  reversion ;  and 
therefoi'e  if  the  words  used  are  sufficient 
for  that  purpose,  the  lease  will  be  a 
good  and  valid  lease.  In  grammatical 
strictness,  and  in  the  nicest  propriety  of 
speech  that  the  English  language  ad- 
mits of,  the  sense  of  the  word  'from^ 
must  always  depend  upon  the  context 
and  subject-matter,  whether  it  shall  be 
construed  inclusive  or  exclusive  of  the 
terminus  a  quo  ;  and  whilst  the  gentle- 
men at  the  bar  were  arguing  this  case, 
a  hundred  instances  and  more  occurred 
to  me,  both  in  verse  and  prose,  where 
it  is  used  both  inclusively  and  exclu- 
sively. If  the  parties  in  the  present 
case  had  added  the  word  '  inclusive,' 
or  '  exclusive,'  the  matter  would  have 
been  very  clear.  If  they  had  said  '  from 
the  day  of  the  date  inclusive,^  the  term 
would  have  commenced  immediately; 
if  they  had  said,  '  from  the  day  of  the 
date  exclusive,'  it  would  have  commenc- 
ed the  next  day.  But  let  us  see  whe- 
ther the  context  and  subject-matter  in 
this  case  do  not  show  that  the  construc- 
tion here  should  be  inclusive,  as  demon- 
strably as  if  the  word  '  inclusive '  had 
been  added.  This  is  a  lease  made  un- 
der a  ])ower ;  the  lease  refers  to  the 
power,  and  the  power  requires  that  the 
lease  should  be  a  lease  in  jiosscssion. 
The  validity  of  it  depends  upon  its  be- 
ing in  possession ;  and  it  is  made  as  a 
provision  for  an  only  daughter.  He 
must  therefore  intend  to  make  a  good 


17G 


THE   LAW   OF   CONTRACTS. 


PART  II. 


there  is  nothing  in  the  language  or  subject-matter  of  the  con- 
tract which  clearly  indicates  the  intention  of  the  parties,  time 
should  be  computed  exclusive  of  the  day  when  the  contract 
was  made,  (l) 


lease.  The  expression  then,  compared 
with  the  circumstances,  is  as  strong  in 
respect  of  what  liis  intention  was,  as  if 
he  had  said  in  express  words,  '  I  mean 
it  as  a  lease  in  possession.'  '  I  mean  it 
shall  be  so  construed.'  If  it  is  so  con- 
strued, the  word  [from '  must  be  inclu- 
sive. This  construction  is  to  support 
the  deed  of  parties,  to  give  effect  to  their 
intention,  and  to  protect  property.  The 
other  is  a  subtlety  to  overturn  property, 
and  to  defeat  the  intention  of  parties, 
without  answering  any  one  good  end  or 
purpose  wliatsover.  And  though  courts 
of  justice  are  sometimes  obliged  to  de- 
cide against  the  convenience,  and  even 
against  the  seeming  right  oi  private  per- 
sons, yet  it  is  always  in  favor  of  some 
great  public  benefit.  But  here,  to  con- 
strue '  from  the  day  of  tlie  date '  to  be 
exclusive,  can  only  be  to  defeat  the  in- 
tention of  the  parties.  If  such  a  con- 
struction were  right,  it  would  hold  good, 
supposing  the  lessee  had  laid  out  ever 
so  much  money  upon  the  estate;  and 
all  would  be  alike  defeated  by  a  mere 
blunder  of  the  attorney  or  his  clerk. 
Therefore,  if  the  case  stood  clear  of 
every  question  or  decision  which  has 
existed,  it  could  not  bear  a  moment's 
argument."  Ilis  lordship  then  proceed- 
ed to  a  minute  examination  of  the  cases 
in  their  chronological  order ;  and  con- 
cluded that  tliey  were  "yes  and  710,  and 
a  medium  between  them,"  and  stood 
little  in  the  way,  "  as  binding  authori- 
ties, against  justice,  reason,  and  com- 
mon sense."  So  in  Lester  v.  Garland, 
15  Vcsey,  248,  it  was  said  to  depend 
upon  tiie  reason  of  the  things  accord- 
ing to  circumstances,  whether  the  day 
should  be  included  or  excluded. 

(/)  Bigclow  V.  AVillson,  1  Tick.  485. 
In  this  case  it  was  held  that  in  comput- 
ing the  time  allowed  by  St.  1815,  c.  137, 
§  1,  for  redeeming  a  right  in  equity,  sold 
on  e.KCcution,  wiiich  is  "  witliin  one 
year  from  the  time  of  executing,  by  the 
officer  to  the  purciiaser,  the  deed  there- 
of," tiic  day  on  which  the  deed  is  exe- 
cuted is  to  be  excluded.  And  Wild,  J., 
in  delivering  the  opinion  of  the  court, 
said,  "  Before  the  case  of  Pugh  v.  Tlic 
Duke  of  Leeds,  all  the  cases  agree  tliat 


the  words,  '  from  the  day  of  the  date,' 
are  words  of  exclusion.  So  plain  was 
this  meaning  tliought  to  be,  tliat  leases 
depending  on  this  rule  of  construction 
were  uniformly  declared  void,  against 
the  manifest  intention  of  the  parties. 
Of  this  doctrine,  thus  applied,  Lord 
Mansjield  very  justly  complains,  not, 
however  on  the  ground  that  the  general 
meaning  of  the  words  had  been  misun- 
derstood, but  because  the  plain  inten- 
tion of  the  parties  to  the  contract  had 
been  disregarded.  All  that  was  de- 
cided in  that  case  was,  that  '  from  the 
day  of  the  date '  might  include  the 
day,  if  such  was  the  clear  intention  of 
the  contracting  parties  ;  and  not  that 
such  was  the  usual  signification  of  the 
words.  I  think,  therefore,  we  are  war- 
ranted by  the  authorities  to  say,  that 
when  time  is  to  be  computed  from  or 
after  the  day  of  a  given  date,  the  day 
is  to  be  excluded  in  the  computation ; 
and  that  this  rule  of  construction  is 
never  to  be  rejected,  unless  it  aj)pears 
that  a  different  computation  was  in- 
tended. So  also  if  we  consider  the 
question  independent  of  the  authorities, 
it  seems  to  me  impossible  to  raise  a 
doubt.  No  moment  of  time  can  be  said 
to  be  after  any  given  day,  until  that  day 
is  expired."  See  also  Tellew  v.  Won- 
ford,  9  B.  &  C.  134,  wlierc  the  clause 
"  two  days  after''''  a  certain  day  was 
held  to  exclude  that  day.  A  sensible 
criterion  seems  to  be  to  reduce  the  time 
to  one  day,  and  see  whether  you  do 
not  ol)tain  an  absurdity,  unless  you  ex- 
clude the  first  day  ;  and  you  must  have 
tlie  same  rule  wiiatever  be  the  number 
of  days.  Tiiis  was  the  rule  adojited  in 
Webb  V.  Fairmaner,  3  M.  &  W.  473, 
where  goods  were  sold  on  the  5th  of 
October  to  be  paid  for  in  two  months. 
It  was  held  that  no  suit  could  be  sus- 
tained until  after  the  expiration  of  the 
5th  of  December  following.  And  see 
to  tlie  same  ellect  Bigclow  v.  Willson, 
supra ;  Hardy  v.  Kyle,  9  B.  &  C.  G03. 
Hex  V.  Addcrley,  2  Dough.  403,  was 
decided  on  a  ])articular  ground,  under 
a  statute  in  favor  of  slicrifls,  and  can- 
not be  considered  as  laying  down  any 
general  rule.     It  is  true  that  in  Glass- 


en.  III.] 


DEFENCES. 


177 


And,  generally,  where  the  party  whose  interests  the  com- 
putation affects,  is  not  the  one  who  may  determine  when  the 
event  shall  happen,  the  longest  time  is  given  him,  and  there- 
fore the  day  of  the  making  is  excluded,  (m)  If  the  con- 
tract refers  to  "  the  day  of  the  date,"  or  "  the  date,"  and 
expresses  any  date,  this  day,  and  not  that  of  the  actual 
making,  is  taken.  But  if  there  is  in  the  contract  no  date, 
or  an  impossible  date  —  as  if  a  thing  is  required  to  be 
done  within  "  ten  days  from  the  date,"  and  the  contract 
was  not  made  until  twenty  days  from  the  expressed  date, 
then  the  day  of  the  actual  making  will  be  understood  to 
be  meant  by  the  day  of  the  date,  (n)  The  expression  "  be- 
tween two  days  "  excludes  both,  (o) 


ington  V.  Rawlins,  3  East,  407,  the  first 
day  seems  to  have  been  included,  but 
there  the  part}'  laj-  in  prison  on  the  day 
he  went  there,  and  also  a  portion  of  each 
of  the  twenty -eight  days  necessary  un- 
der the  statute  to  amount  to  an  act  of 
bankruptcy,  and  as  the  law  takes  no 
cognizance  of  a  part  of  a  day,  the  case 
does  not  upon  careful  examination  con- 
flict with  the  rule  in  the  text,  viz.,  to 
regard  the  first  day  as  excluded.  Rex 
i\  Cumberland,  4  Nev.  &  Mann.  378,  is 
to  the  same  effect.  See  Wilkinson  v. 
Gaston,  9  Q.  B.  141  ;  Gorst  v.  Lowndes, 
1 1  Sim.  434  ;  Farwell  v.  Rogers,  4 
Gushing,  460;  Judd  v.  Fulton,  10  Bar- 
bour, 117  ;  Bissell  v.  Bissell,  11  Id.  96; 
Thomas  v.  Afflick,  16  Penn.  St.  14, 
overruling  Goswiler's  Estate,  3  Penn. 
210  ;  4  Kent's  Com.  p.  95,  n.  (a) ;  Blake 
V.  Crowninshield,  9  N.  H.  314;  Ewing 
V.  Bailey,  4  Scammor,  420  ;  Presbrey 
V.  Williams,  15  Mass.  193;  Weeks  v. 
Hull,  19  Conn.  376  ;  Sands  v.  Lyon,  18 
Conn.  28 ;  Avery  v.  Stewart,  2  Conn. 
69 ;  Wiggin  v.  Peters,  1  Mete.  127 ; 
Cornell  v.  Moulton,  3  Denio,  12. 

(in)  Lester  v.  Garland,  15  Ves.  248, 
256;  Pellew  v.  Wonford,  9  R.  &  C. 
134,  144,  per  Lord  Tenterden.  So  the 
phrase  "  until  a  certain  day"  has  been 
held  to  exclude  that  day.  Wicker  v. 
Norris,  Gas.  temp.  Hardw.  116.  But  it 
may  admit  of  a  different  interpretation 
according  to  the  subject-matter  and  con- 
text.    Rex  V.  Stevens,  5  East.  244. 

(n)  Styles  v.  Wardle,  4  B.  &  C.  908. 
This  was  an  action  of  covenant  on  an  in- 
denture, dated  the  24th  December,  1822, 
whereby  the  plaintiff,  in  consideration  of 


924/.,  leased  to  the  defendant  a  house  and 
premises  for  ninety-seven  years  ;  subject 
to  an  agreement  for  an  under-lease  to  A. 
for  twenty-one  years  ;  and  the  defendant 
covenanted  that  he  would,  within  twen- 
ty-four calendar  months  then  next  after 
the  date  of  the  indenture,  procure  A.  to 
accept  a  lease  of  the  premises  for  the 
term  of  twenty-one  years  from  Christ- 
mas day,  1821  ;  and  that  in  case  A. 
would  not  accept  the  lease,  that  he,  the 
defendant  would,  within  one  calendar 
month  next  after  the  expiration  of  the 
said  twenty-four  calendar  months,  pay 
to  the  plaintiff  a  certain  sum  of  money. 
The  declaration,  after  setting  forth  the 
indenture  as  above,  assigned  as  a  breach 
that  the  defendant  did  not  procure  A. 
to  accept  of  said  lease  within  said  twen- 
ty-four calendar  months,  nor  pay  the 
said  sum  of  money  within  one  calen- 
dar month  after  the  expiration  of  said 
twenty-four  calendar  months.  The  de- 
fendant pleaded  that  the  indenture  was 
not  in  fact  executed  and  delivered  until 
the  8th  of  April,  1823  ;  and  that  at  the 
time  of  the  commencement  of  the  action, 
twenty-five  calendar  months  had  not 
elapsed  from  the  time  of  the  execution 
of  the  indcntui-e.  To  this  plea  the 
plaintiff  demurred,  and  the  court  sus- 
tained the  demurrer.  Baylcy,  J.,  said : — 
"  The  question  in  this  case  is  simply  as 
to  the  construction  to  be  put  upon  the 
words  of  this  deed.  A  deed  has  no 
operation  until  delivery,  and  there  may 
be  cases  in  which  ut  res  valeat,  it  is  ne- 
cessary to  construe  date,  delivery.  When 
there  is  no  date,  or  an  impossible  date, 
that   word  miist  mean   delivery.    But 


178 


THE   LAW   OF   CONTRACTS. 


[part  II. 


The  rule  which  makes  notes  which  become  due  on  Sun- 
day, without  grace,  payable  on  the  Monday  following,  ap- 


where  there  is  a  sensible  date,  that  word 
in  other  parts  of  the  deed  means  the 
day  of  tlie  date,  and  not  of  the  delivery. 
This  distinction  i.s  noticed  in  Co.  Litt. 
46  b,  where  it  is  said,  '  If  a  lease  be  made 
by  indcntnre  bearing  date  26th  of  May, 
to  hold,  &c.,  for  twenty-one  years  from 
the  date,  or  from  the  day  of  the  date,  it 
shall  begin  on  the  27th  day  of  May.    If 
the  lease  bears  date  the  26th  of  May,  to 
have,  &c.,  from  the  making  hereof,  or 
from  henceforth,  it  shall  begin  on  the 
day  on  which  it  is  delivered,  &c.'     And 
afterwards  it  is  said  '  If  an  indenture  of 
■  lease   bear  date  which  is  void   or  im- 
possible, as  the  30th  of  February,  &c., 
if  in   tliis   ease  the  term  be  limited  to 
begin  from  the  date,  it  shall  begin  from 
the  delivery,  as   if  there  had  been  no 
date  at  all.'     In  Arnitt  v.  Bream,  2  Ld. 
Kaym.  1082,  it  is  said,  'If  the  award 
had  no  date,  it  must  be  computed  from 
the  delivery,  and  that  is  one  sense  of 
datus.''     The  question  here  is,  what  in 
this  covenant  is  the  meaning  of  dattis  ? 
I  consider  that  a  party  executing  a  deed 
agrees  that  the  day  therein  mentioned 
shall  be  the  date  for  purposes  of  com- 
putation.    It  would  be  very  dangerous 
to  allow  a  different  construction  of  the 
word  date,  for  then  if  a  lease  were  exe- 
cuted on  the   30th   of  March,  to  hold 
from  the  date,  that  being  the  25th,  and 
the  tenant  were  to  enter  and  hold  as  if 
from  that  day,  yet,  after  the  exi)iratioa 
of  the  lease,  he  might  defeat  an  eject- 
ment on  the  ground  that  the  lease  was 
executed  on  a  day  subsc([uent  to   the 
25th   of  March,   and   that   he  did  not 
hold  from  that  day.     All  tlie  authori- 
ties give  a  definite  meaning  to  the  word 
date  in  general,  but  show  tliat  it  may 
have  a  different  meaning  when  that  is 
necessar}',  ut   res   vcdcat.     It  has   been 
said   that   the   computation   could   not 
have  been    intended   to  be  made  from 
the  date,  if  the  twenty-four  months  had 
elapsed  iiefore  the  execution  of  the  deed. 
That  may  be  true,  for  then  the  inten- 
tion of  the  parties  that  the  computation 
should  not  be  made  from  the  date  would 
have   been  apparent.     Here  the  mean- 
ing of  the  deed  is  ]jlain,  and  according 
to  that  a  breach  of  covenant  was  com- 
mitted before  the  commencement  of  the 
action.     The  plea  is  therefore  bad." 
(o)  Therefore,  a  policy  of  insurance 


on  goods  to  be  shipped  between   "  Feh- 
ruary    1st   and   July    15th"    does   not 
cover  goods  shipped  on  the  15th  of  July. 
Atkins  V.   Boylston   Fire   and    ]\Iarine 
Ins.    Co.,    5    Met.    439.     In    tliis    case 
Wdd,  J.,  said  :  —  "  The  construction  of 
the  policy  seems  to  depend  wholly  on  the 
true   meaning   of  the  word  '  between.' 
This  preposition,  like  many  other  words, 
has  various  meanings  ;  and  the  question 
is,  in  what  sense  was  it  used  in  the  pre- 
sent policy.     The   most    common   use 
of  the  word  is  to  denote  an  interme- 
diate space  of  time  or  place,  and  the 
defendant's  counsel  contends  that  it  was 
so  used  in  the  present  policy,  and  that 
the  first  day  of  February  and  the  fif- 
teenth day  of  July  are  to  be  both  ex- 
cluded.    On  the  other  hand,  the  plain- 
tiff's counsel  insists  that  both  days  arc 
to  be  included ;  at  least  I  so  understood 
the  argument.     And  we  think  it  clear 
that  both  days  must  be  included  or  ex- 
cluded ;  for  there  is  nothing  in  the  con- 
tract manifesting  the  intention  of  the 
parties  to  include  or  exclude  one  day 
rather  than  the  other.     It  is  undoubted- 
ly true  that  the  word  '  between '  is  not 
always  used  to  denote  an  intermediate 
space  of  time  or  place,  as  the  plaintiff's 
counsel  remarked.     We  speak  of  a  bat- 
tle between   two   armies,    a  combat,  a 
controversy,  or  a  suit  at  law  between 
two  or  more  parties,  but  the  word  thus 
used  refers  to  the  actions  of  the  parties, 
and  does  not  denote  locality  or  time. 
But  if  it  should  be  said  that  there  was 
a  combat  between  two  persons  between 
two  buildings,   the   latter   word  would 
undoubtedly  refer  to   the   intermediate 
space  between  the  buildings,  while  the 
former  word  would  denote  tiie  action  of 
the  parties.     But  it  was  argued  that  the 
word  '  between '   is  not  always  used  as 
exclusive  of  the  termini^  when  it  refers 
to  locality.     Thus  we  speak  of  a  road 
between  one  town  and  another,  although 
the  road  extends  from  the  centre  of  one 
town  to  the  other,  and  this,  in  common 
parlance,   is   a    description   sufficiently 
intelligible,  although  the  road  in   fact 
penetrates  each  town.     But  if  all  the 
land  between  two  buildings,  or  between 
two  other  lots  of  land  be  granted,  then 
certainly  only  the  intermediate  land  be- 
tween the  two  lots  of  land  or  the  two 
buildings,   would    pass   by   the   grant. 


CH.  III.]  DEFENCES.  179 

plies  to  all  contracts ;  no  one  is  bound  to  do  any  work  in 
performance  of  his  contract  on  Sunday,  (p)  unless  the  work 
by  its  very  nature,  or  by  express  agreement,  is  to  be  done  on 
that  day,  and  can  be  done,  without  a  breach  of  the  law. 
But  if  a  contrapt  is  to  be  performed,  or  some  act  done  in  a 
certain  number  of  days,  and  Sunday  happens  to  come  be- 
tween the  first  and  last  day,  it  must  be  counted  as  one  day, 
unless  the  contrary  be  clearly  expressed,  (q)  If  a  party, 
bound  to  do  a  thing  on  a  certain  day,  and  therefore  having 
the  whole  intermediate  time,  by  some  act  distinctly  incapa- 
citates himself  from  doing  that  thing  on  that  day,  it  seems 
that  an  action  may  be  commenced  at  once  without  waiting 
for  that  day.  As  if  a  man  promises  to  marry  a  woman  on 
a  future  day,  and  before  that  time  marries  another,  he  has 
been  held  liable  to  an  action  before  the  day  of  performance 
arrives.  (;•)  So  if  he  engages  to  lease  or  sell  property  from 
and  after  a  certain  day,  but  before  that  time  conveys  to 
another,  (s)  It  might,  however,  seem  more  reasonable  to 
permit  such  an  action  only  where  the  capacity  of  the  pro- 
misor could  not  be  restored  before  the  day,  or  the  promisee 
had  received  a  present  injury  from  the  act  of  the  promisor,  (t) 

And  we  think  the  word  '  between  '  has  cent  case  of  Hochster  v.  DeLatour,  20 

the  same  meaninq;  when  it  refers  to  a  Eng.  Law.  &  Eq.  157,  goes  further  in 

period  of  time  from  one  day,  month  or  sustaining  such  an  action  tlian  any  pre- 

year.  to  another.     If  this  policy  had  in-  vious  case.     The  action  was  commenced 

sured  the  plaintiff's  property  to  be  ship-  on  the  22d  of  May,  1852.     The  dccla- 

ped   between    February   and   the   next  ration  stated  that  in  consideration  that 

July  it  would  clearly  not  cover  any  pro-  the  plaintiti"  would  agree  to  enter  the 

perty  shipped  in  cither  of  those  months,  service  of  the  defendant  as  a  courier, 

So  we  think  the  days  mentioned  in  the  on  the  1st  of  June,  1852,  and  to  serve 

policy  arc  excluded."  the   defendant   in    that    capacity,   and 

(/>)  Sands   v.   Lyon,    18    Conn.    18;  travel  with  him  as  a  courier,  for  three 

Avery  v.   Stewart,  2  Conn.  69  ;    Cock  months  certain,   from    the   said    1st  of 

V.  Bunn,  6  Johns.  32G,  and  note  (a)  in  June,  for   certain   monthly  wages,  the 

2nd  edition;  Salter  v.  Burt,  20  Wend,  defendant  agreed  to  employ  the  plain- 

205;    Barrett  v.   Allen,   10  Ohio,  42G ;  tiff  as  courier  on  and  from  the  said  1st 

Link  r.  Clcmmens,  7  Blackf.  47'J.     But  of  June   for   three   months   certain,  to 

see  contra,  Kilgour  v.  Miles.  6  Gill.  &  travel  with  him  on  the  continent,  and 

Johns.  2G8;  and  see  Stead  v.  Dawber,  to  start  with  the  plaintiff' on  such  travels 

10  Ad.  &  El.  57.  on  the  said  day,  and  to  pay  the  plain- 

{q)  Brown  v.  Johnson,   10  M.  &  W.  tiff'  during  such   employment  the  said 

331;  King  y.  Dowdall,  2  Sandf  131.  monthly  wages.    Averment  of  an  agrce- 

(r)  Short  v.  Stone,  8  Q.  B.  358.  nicnt  to  the  said  terms  on  the  ])art  of  the 

(s)  Lovelock   v.   Franklyn,    8  Q.  B.  plaintiff",  and  of  his  readiness  and  wil- 

371;  Ford  v.  Tiley,   6   B.   &   C.  325;  lingness  to  enter  upon  the  said  cmploy- 

Bowdell  V.  Parsons,  10  East,  359.  ment,  and   to  perform  the  said  agree- 

(t)  See  New  Eng.  Mutual  F.'Ins.  Co.  ment.     Breach,  that  the  defendant,  bc- 

v.  Butler,  34  Maine,  451.    But  there-  fore  the  said  1st  of  June,  wholly  refused 


180 


THE   LAA7   OF   CONTRACTS. 


[part  II. 


6.  Of  notice. 


Contracts  sometimes  express  that  they  arc  to  be  performed 
"  on  notice  "  generally,  or  on  some  specific  notice,  and  notice 


to  employ  the  plaintiff  in  the  capacity 
and  for  tlic  purpose  aforesaid,  on  or 
from  tlie  said  1st  day  of  June  or  any 
other  time,  and  wholly  discharged  the 
plaintirt"  from  his  said  agreement,  and 
from  the  performance  of  the  same,  and 
from  being  ready  and  willing  to  per- 
form the  same  ;  and  the  defendant 
wholly  broke  and  put  an  end  to  his 
promise  and  engagement :  —  Held,  in 
arrest  of  judgment,  that,  after  the  re- 
fusal of  the  defendant  to  employ,  the 
plaintiff  was  entitled  to  bring  an  action 
immediately,  and  was  not  bound  to  wait 
until  after  the  day  agreed  upon  for  the 
commcneemcnt  of  performance  had  ar- 
rived. And  Lord  Campbell,  in  deliver- 
ing the  judgment  of  the  court,  said, 
"  On  this  motion  in  arrest  of  judgment 
the  question  arises  whether,  if  there  be 
an  agreement  between  A.  and  B.,  where- 
by B.  engages  to  employ  A.,  on  and 
from  a  future  day,  for  a  given  period  of 
time,  to  travel  with  him  into  a  foreign 
country  as  a  courier,  and  to  start  with 
him  in  that  capacity  on  that  day,  A. 
being  to  receive  a  monthly  salary  dur- 
ing the  continuance  of  such  service,  B. 
may,  before  the  day,  refuse  to  perform 
the  agreement,  and  break  and  renounce 
it,  so  as  to  entitle  A.  before  the  day,  to 
commence  an  action  against  B.  to  re- 
cover damages  for  breacli  of  the  agree- 
ment ;  A.  having  been  ready  and  will- 
ing to  perform  it  until  it  was  broken 
and  renounced  by  B.  The  defendant's 
counsel  very  powerfully  contended  that 
if  the  plaintiff  was  not  contented  to  dis- 
solve the  contract,  and  to  abandon  all 
remedy  upon  it,  he  was  bound  to  re- 
main ready  and  willing  to  perform  it 
till  the  day  when  the  actual  employ- 
ment as  courier  in  the  service  of  the  de- 
fendant was  to  begin,  and  that  there 
could  be  no  breach  of  the  agreement 
before  that  day  to  give  a  right  of  action. 
But  it  cannot  be  laid  down  as  a  univer- 
sal rule  that  where,  by  agreement,  an 
act  is  to  be  done  on  a  future  day,  no 
action  can  be  brouglit  for  a  breach  of 
the  agreement  till  tlie  day  for  doing  the 
act  has  arrived.  If  a  man  promises  to 
marry  a  woman  on  a  future  day,  and 


before  that  day  marries  another  woman, 
he  is  instantly  liable  to  an  action  for 
breach  of  promise  of  marriage.  Short 
V.  Stone,  8  Q.  B.  358.  If  a  man  con- 
tracts to  execute  a  lease  on  and  from  a 
future  day  for  a  certain  term,  and  before 
that  day  executes  a  lease  to  another  for 
the  same  term,  he  may  be  immediately 
sued  for  breaking  the  contract.  Ford 
V.  Tilcy,  G  B.  &  C.  325.  So  if  a  man 
contracts  to  sell  and  deliver  specific 
goods  on  a  future  day,  and  before  the 
day  he  sells  and  delivers  them  to  ano- 
ther, he  is  immediately  liable  to  an  ac- 
tion at  the  suit  of  the  person  with  whom 
he  first  contracted  to  sell  and  deliver 
them.  Bowdell  v.  Parsons,  10  East, 
359.  One  reason  alleged  in  support  of 
such  an  action  is,  that  the  defendant 
has  before  the  daj-,  rendered  it  impossi- 
ble for  him  to  perform  the  contract  at 
the  day.  But  this  docs  not  necessarily 
follow,  for  prior  to  the  daj'  fi.xed  for  do- 
ing the  act,  the  first  wife  may  have  died  ; 
a  surrender  of  the  lease  executed  might 
be  obtained;  and  the  defendant  might 
have  repurchased  the  goods,  so  as  to  be 
in  a  situation  to  sell  and  deliver  them 
to  the  jdaintift'.  Another  reason  may 
be,  that  when  lliere  is  a  contract  to  do 
an  act  on  a  future  day,  there  is  a  relation 
constituted  between  the  parties  in  the 
mean  time  by  the  contract,  and  that 
they  impliedly  promise  that  in  the  mean 
time  neither  will  do  anything  to  the 
prejudice  of  the  other,  inconsistent  with 
that  relation.  A.s  an  example  :  a  man 
and  woman,  engaged  to  marry,  are  affi- 
anced to  one  another  during  the  period 
between  the  time  of  the  engagement 
and  the  celebration  of  the  marriage.  In 
this  very  case  of  traveller  and  courier, 
from  the  day  of  the  hiring  till  the  day 
when  the  employment  was  to  begin, 
they  were  engaged  to  each  other,  and 
it  seems  to  be  a  breach  of  an  implied 
contract  if  either  of  them  renounces  the 
engagement.  This  reasoning  seems  in 
accordance  with  tlie  unanimous  deci- 
cision  of  the  Kxchi'qucr  Chamber,  in 
Emmens  v.  Elderton,  G  C  B.  IGO,  wdiich 
we  have  followed  in  subsequent  cases 
in  this  court.    The  declaration  iu  the 


en. 


III.] 


DEFENCES. 


181 


is  then  indispensable,  (u)  In  some  instances  the  necessity 
of  notice  springs  from  the  nature  of  the  contract,  though  no- 
thing be  said  about  it.     Generally,  where  any  thing  is  to  be 


present  ease,  in  allej^inj^  a  breach,  states 
a  great  deal  more  tlian  a  passing  inten- 
tion on  the  part  of  tlie  defendant  wliich 
he  may  repent  of,  and  could  only  be 
proved  by  evideoce  that  he  iiad  utterly 
renounced  the  contract,  or  done  some 
act  which  rendered  it  impossible  for 
him  to  perform  it.  If  the  plaintiff'  has 
no  remedy  for  breach  of  the  contract, 
unless  he  treats  the  contract  as  in  force, 
and  acts  upon  it  down  to  the  first  of 
June,  1852,  it  follows  that  till  then  he 
must  enter  into  no  employment  which 
will  interfere  with  his  promise  "to  start 
on  such  travels  with  the  plaintiff  on  that 
day,"  and  that  he  must  then  be  properly 
equipped  in  all  respects  as  a  courier 
for  three  months'  tour  on  the  continent 
of  Europe.  But  it  is  surely  much  more 
rational,  and  more  for  the  benefit  of 
both  parties,  that  after  the  renunciation 
of  the  agreement  by  the  defendant,  the 
plaintiff  should  be  at  liberty  to  consider 
himself  absolved  from  any  future  per- 
formance of  it,  retaining  his  right  to 
sue  for  any  damage  he  has  suffered  from 
the  breach  of  it.  Thus  instead  of  re- 
maining idle  and  laying  out  money  in 
preparations  which  must  be  useless,  he 
is  at  liberty  to  seek  service  under  ano- 
ther emjiloyer,  which  would  go  in  miti- 
gation of  the  damages  to  which  he 
would  otherwise  be  entitled  for  a  breach 
of  the  contract.  It  seems  strange  that 
the  dciendant,  after  renouncing  the  con- 
tract and  absolutely  declaring  that  he 
will  never  act  under  it,  should  be  per- 
mitted to  object  that  faith  is  given  to 
his  assertion,  and  that  an  opportunity 
is  not  left  to  him  of  changing  his  mind. 
If  the  plaintiff  is  barred  of  any  remedy 
by  entering  into  an  engagement  incon- 
sistent with  starting  as  a  courier  with 
the  defendant  on  the  first  of  June,  he  is 
prejudiced  by  putting  faith  in  the  de- 
fendant's assertion ;  and  it  would  be 
more  consonant  with  principle,  if  the 
defendant  were  precluded  from  saying 
that  he  had  not  broken  the  contract 
when  he  declared  that  he  entirely  re- 
nounced it.  Suppose  that  the  defendant, 
at  the  time  of  his  renunciation,  had  em- 
barked on  a  voyage  to  Australia,  so  as 
to  render  it  physically  impossible  for 
liim  to  employ  the  plaintift'  as  a  courier 
on   the    continent   of   Europe,   in   the 

VOL.   II.  16 


months  of  June,  July,  and  August. 
1852,  according  to  decided  ca.ses  the 
action  might  have  been  brouglit  before 
the  1st  of  June  ;  but  tlie  renunciation 
may  have  been  founded  on  other  facts 
to  be  given  in  evidence,  which  would 
equally  have  rendered  the  defendant's 
performance  of  the  contract  impossible. 
The  man  who  wrongfully  renounces  a 
contract  into  which  he  has  deliberately 
entered,  cannot  justly  complain  if  he  is 
immediately  sued  for  a  compensation  in 
damages  by  the  man  whom  he  has  in- 
jured ;  and  it  seems  reasonable  to  al- 
low an  option  to  the  injured  party  either 
to  sue  immediately  or  to  wait  till  the 
time  when  tiie  act  was  to  be  done,  still 
holding  it  as  prospectively  binding  for 
the  exercise  of  this  option,  which  may 
be  advantageous  to  the  innocent  party, 
and  cannot  be  prejudicial  to  the  wrong- 
doer. An  argument  against  the  action 
before  the  1st  of  June  is  urged,  from  the 
difficulty  of  calculating  the  damages; 
but  this  argument  is  equally  strong 
against  an  action  before  the  1st  of  Sep- 
tember, when  the  three  months  would 
expire.  In  cither  case,  the  jury,  in  as- 
sessing the  damages,  would  be  justified 
in  looking  to  all  that  had  happened,  or 
was  likely  to  happen,  to  increase  or 
mitigate  the  loss  of  the  plaintiff  down 
to  the  day  of  trial." 

(m)  Hodsden  v.  Harridge,  2  Wms. 
Saund.  62,  a.,  n.  (4)  ;  Child  v.  Horden, 
5  Bulstr.  144.  In  Quarles  v.  George, 
23  Pick.  400,  by  a  contract  between  the 
plaintiff  and  the  defendant  it  Mas  agreed 
that  the  defendant  should  deliver  to  the 
plaintiff  one  thousand  barrels  of  flour, 
at  the  rate  of  six  dollars  per  barrel,  at 
an}'  time  within  six  months  from  the 
date  of  the  contract,  and  give  him  six 
days  notice  prior  to  the  time  of  such 
delivery,  and  that  the  plaintiff  should 
I)ay  that  price  therefor  on  delivery. 
In  an  action  by  the  i)laintiff  against  the 
defendant  for  not  delivering  the  flour 
within  the  six  months,  it  was  held,  that 
under  the  provisions  of  this  contract  it 
was  incumbent  on  the  defendant  to  do 
the  first  act  by  giving  notice  of  his  readi- 
ness to  deliver  the  flour ;  but  that  as  he 
had  a  right  to  give  notice  six  days  be- 
fore the  expiration  of  the  six  months, 
and  had  he  then  given  notice  he  would 


182 


THE    LAW   OF   CONTRACTS. 


[part  II. 


done  by  one  party  on   the  performance  of  some  act  by  the 
other,  this  other  must  give  notice  of  such   act,  (v)  unless  it 


have  had  till  the  last  day  of  the  six 
months  to  deliver  the  flour,  the  actual 
breach  of  the  contract  l)y  non-delivery 
must  be  taken  to  have  occurred  on  such 
last  day.  and  the  damage  computed  ac- 
cordingly.— In  declaring  on  a  promise 
to  pay  money  on  demand,  if  a  third 
person  shall  fail  to  do  a  certain  act,  it 
is  not  necessary  to  aver  a  notice  of  the 
failure  to  do  that  act,  or  a  demand  of 
the  money.  Dver  v.  Rich,  1  Mete.  189. 
(v)  Vvse  1-.  Wakefield.  6  M.  &  W. 
442,  8  bowl.  P.  C.  377,  4  Jur.  509, 
affirmed  on  error,  7  M.  &  W.  12G,  is  an 
excellent  case  on  this  subject.  There 
the  declaration  stated,  that,  by  indent- 
ure, the  defendant  covenanted  that  he 
would,  at  any  time  or  times  thereaf- 
ter, appear  at  an  office  or  offices  for 
the  insurance  of  lives  within  London, 
or  the  bills  of  mortality,  and  answer 
such  questions  as  might  be  asked  re- 
specting his  age,  &c.,  in  order  to  enable 
the  plaintiff' to  insure  his  life,  and  would 
not  afterwards  do  or  permit  to  be  done 
any  act  whereby  such  insurance  should 
be' avoided  or  prejudiced.  It  then  al- 
leged, tliat  the  defendant,  in  part  per- 
formance of  his  covenant,  did,  at  the 
plaintiff" 's  request,  appear  at  the  office 
of  the  Rock  Life  Insurance  Company, 
and  did  answer  certain  questions  asked 
of  him ;  and  that  the  plaintiff"  insured 
the  defendant's  life  with  that  com  pan  yj 
by  a  policy  containing  a  proviso,  that 
if  the  defendant  went  beyond  the  limits 
of  Europe,  the  policy  should  be  null 
and  void  : — Breach,  tliat  the  defendant 
went  beyond  the  limits  of  Europe,  to 
wit,  to  the  province  of  Canada,  in  North 
America: — IIclJ,  on  special  demurrer, 
that  the  declaration  was  had,  for  not 
averring  that  the  defendant  had  notice 
that  the  policy  was  elfeeted.  Lord 
Abdif/er  said : — "  I  am  of  opinion  that 
the  defendant  in  this  case  is  entitled 
to  our  judgment,  on  two  grounds.  The 
plaintiff"  having  reserved  to  himself  the 
liberty  of  cff'ecting  the  insurance  at  any 
office  within  the  i)ills  of  mortality,  the 
number  of  which  is  limited  only  by  the 
circumscrijjtion  of  the  place,  and  hav- 
ing also  reserved  to  liimself  the  choice 
of  time  for  effecting  the  insurance,  it 
appears  to  me  that  he  ought  to  give 
the  defendant  notice  of  his  having  ex- 
ercised his   option,   and   of  the   insur- 


ance having  been  eft'ectcd,  before  an 
action  can  he  maintained.  But  there 
is  also  another  ground,  which  weighs 
strongly  with  me  in  coming  to  this 
conclusion.  Even  supposing  the  de- 
fendant were  bound  to  go  to  all  the 
insurance  offices  within  the  bills  of  mor- 
tality, to  ascertain  whether  such  a  po- 
licy had  been  cff"ected,  he  would  still  be 
obliged  to  do  something  more  ;  namely, 
to  learn  what  were  the  particular  con- 
ditions on  which  it  w'\s  effected,  because 
tlie  covenant  here  is,  not  that  the  defend- 
ant shall  not  do  any  thing  to  evade  the 
covenants  or  conditions  usually  pre- 
scribed by  insurance  offices ;  but  that 
he  shall  not  violate  any  of  the  condi- 
tions by  which  such  insurance  might 
be  avoided  or  prejudiced  ;  i.  e.,  he  is 
bound  to  observe  all  the  stipulutions 
contained  in  any  policy  which  the  plain- 
tiff may  effect.  Now,  some  conditions 
totally  distinct  from  the  conditions  in 
general  use,  might  be  annexed  by  a 
particular  insurance  office  ;  and  in  such 
case  it  would  be  most  unfair  to  allow 
the  plaintiff  to  keep  the  policy  in  his 
pocket,  and  without  notice  of  them,  to 
call  on  the  defendant  to  pay  for  a  vio- 
lation of  the  stipulations  contained  in 
it.  Suppose  one  of  the  conditions  im- 
posed by  the  policy  were,  that  the  party 
whose  life  was  insured  should  live  on  a 
particular  diet,  or  at  a  particular  i)lace, 
or  cease  from  some  particular  jn-acticc 
to  which  he  was  addicted,  or  that  he 
should  abandon  some  course  of  exercise 
which  might,  if  persevered  in,  cost  him 
his  life,  and  the  forsaking  of  which  the 
insurance  office  might  be  fully  justified 
in  making  a  condition  of  insuring  the 
life  at  all,  it  would  be  hard  if  the  plain- 
tiff could,  without  giving  the  defendant 
notice  of  the  existence  of  such  a  condi- 
tion, make  him  pay  the  amount  of  the 
jiolicy  on  its  violation.  The  rule  to  be 
collected  from  .he  cases  seems  to  be 
this,  that  where  a  party  stipulates  to  do 
a  certain  thing  in  a  certain  specific 
event  which  may  become  known  to  him, 
or  with  which  be  can  make  himself 
acquainted,  he  is  not  entitled  to  any  no- 
tice, unless  he  stipulates  for  it;  but 
when  it  is  to  do  a  thing  which  lies  with- 
in the  peculiar  knowledge  of  the  oppo- 
site party,  then  notice  ought  to  he  given 
him.     That  is  the  common  sense  of  the 


CII.  III.]  DEFENCES.  183 

be  one  that  carries  notice  of  itself.     And  if  the  thing  is  to  be 


matter,  and  is  what  is  laid  down  in  all 
tlic  cases  on  the  subject ;  and  if  there 
are  any  to  he  found  which  deviate  from 
this  principle  it  is  quite  time  that  they 
should  be  overruled.''  And  Parke,  B., 
said: — "The  (general  rule  is,  that  a 
party  is  not  entitled  to  notice,  unless 
h.c  has  stipulated  for  it ;  hut  there  are 
certain  cases  where,  from  the  very  nature 
of  the  transaction,  the  law  requires  no- 
tice to  he  £;iven,  though  not  expressly 
stipulated  for.  There  are  two  classes 
of  cases  on  this  subject,  neither  of 
which,  however,  altogether  resembles 
the  present.  One  of  them  is,  where  a 
party  contracts  to  do  something,  but 
the  act  on  which  the  right  to  demand 
performance  is  to  arise  is  perfectly  in- 
definite, as  iu  the  case  of  Haule  v. 
Hemvng,  Vin.  Abr.  '  Condition,'  (A. 
d.)  pi.  15,  Cro.  Jac.  422,  where  the 
defendant  promised  to  pay  the  plaintiff 
for  certain  weys  of  barley  as  much  as 
the  plaintiff  sold  them  for  to  any  other 
man :  there  the  plaintiff  is  bound  to 
aver  notice,  because  the  person  to  whom 
the  weys  are  to  be  sold  is  perfectly  in- 
definite, and  altogether  at  the  option  of 
the  plaintiff,  who  may  sell  them  to  whom 
he  pleases  ;  and,  in  such  cases,  the  right 
of  the  defendant  to  a  notice  before  he 
can  be  called  on  to  pay,  is  implied  by 
law  from  the  construction  of  the  con- 
tract. So,  where  a  party  stipulates  to 
account  before  such  auditors  as  the 
obligee  shall  assign,  the  obligee  is 
bound  to  give  him  notice  when  he  has 
assigned  them  ;  for  that  is  a  fact  which 
depends  entirely  on  the  option  or  choice 
of  tlie  plaintiff.  On  the  other  hand,  no 
notice  is  requisite  when  a  specific  act 
is  to  be  done  by  a  third  party  named, 
or  even  by  the  obligee  himself;  as,  for 
example,  where  the  defendant  covenants 
to  pay  money  on  the  marriage  of  the 
obligee  with  13.,  or  perhaps  on  the  mar- 
riage of  B.  alone,  (for  there  arc  some 
cases  to  that  effect,)  or  to  pay  such  a 
sum  to  a  certain  person,  or  at  such  a 
rate  as  A.  shall  pay  to  B.  In  these 
cases  there  is  a  particular  individual 
specified,  and  no  option  is  to  be  exer- 
cised ;  and  the  party  who,  without  sti- 
pulating for  notice,  has  entered  into  the 
obligation  to  do  those  acts,  is  bound  to 
do  them-  But  there  is  an  intermediate 
class  of  cases  between  these  two.  Let 
us  suppose  the  defendant  in  this  case 
bound  to  perform  such  stipulations  as 


shall  be  contained  on  a  policy  to  be 
eftected  at  some  office  in  London.  Now, 
my  present  impression  is,  that  where 
any  option  at  all  remains  to  he  exercis- 
ed on  the  part  of  the  plaintiff,  notice  of 
his  having  determined  that  option  ought 
to  be  given  ;  and  if  this  had  been  a 
covenant  by  the  defendant  to  perform 
the  conditions  to  be  imposed  by  any 
insurance  company  then  existing  in 
London,  I  think  it  would  be  the  duty  of 
the  plaintiff  to  notify  to  the  defendant 
the  exercise  of  his  option,  as  to  which 
he  had  selected.  But  this  principle  holds 
even  more  strongly  in  the  present  case  ; 
for  not  only  do  the  terms  of  the  cove- 
nant apply  to  all  actually  existing  com- 
panies of  the  sort,  but  to  all  that  might 
at  any  future  time,  subsequent  to  the 
date  of  the  deed,  be  established  within 
the  bills  of  mortality.  Now  that  is  a 
condition  which  appears  to  me  so  per- 
fectly indefinite,  that  notice  ought  to 
be  given  by  the  plaintiff  of  his  having 
determined  his  choice  ;  and  I  think 
therefore,  that  he  was  at  least  bound  to 
give  notice  that  a  policy  of  insurance 
had  been  effected  by  him  at  such  a  par- 
ticular office  ;  it  might  then,  perhaps,  be 
the  duty  of  the  defendant  to  inquire  at 
that  office  into  the  nature  and  terms  of 
the  policy  which  had  been  there  effect- 
ed." See  also  Haule  v.  Hemvng,  Vin. 
Abr.  Condition,  (A.  d.)  pi.  1.5;  S.  C. 
nom.  Henning's  case,  Cro.  Jac  432. 
So  in  Graddon  v.  Price,  2  C.  &,  P.  610, 
it  was  held  that  a  performer,  who  is 
called  on  to  resume,  in  consequence  of 
the  illness  of  another,  a  part  in  which 
by  previous  performances  she  has  ac- 
quired celebrity,  is  entitled  to  reason- 
able notice  previous  to  the  time  of  per- 
formance, such  notice  to  be  proportioned 
to  the  reputation  at  stake.  In  Haverly 
V.  Leighton,  1  Bulstr.  12,  the  defendant 
promised  the  plaintiff's  intestate  that  if 
he  borrowed  £100  of  B.  he  would  pay 
him  the  same  sum,  upon  the  same  con- 
ditions, as  they  between  them  should 
agree  upon,  and  notice  of  such  agree- 
ment was  held  not  necessary.  So  in 
Bradley  v.  Toder,  Cro.  Jac.  228,  and 
Fletcher  v.  Pynsett,  Cro.  Jac.  102,  where 
the  promise  was  in  consideration  that 
the  plaintiff  would  marry  such  a  woman, 
the  defendant  would  give  him  £100,  no- 
tice of  the  marriage  was  held  not  neces- 
sary. 


184  THE  LAW  OP  CONTRACTS.  [PART  II. 

done  on  the  happening  of  an  event  not  to  be  caused  by  either 
party,  he  who  is  to  have  the  benefit  of  the  thing  should  give 
notice  to  him  who  is  to  do  it,  that  the  event  has  occurred, 
unless  from  its  own  nature,  it  must  become  known  to  that 
party  when  it  happens  ;  or,  perhaps,  unless  it  is  as  likely  to 
be  known  to  the  party  who  is  to  do  the  act  required  by  the 
contract,  as  to  him  for  whose  benefit  it  is  to  be  done.  The 
rule  in  respect  to  demand  rests  upon  the  same  principle  with 
that  in  respect  to  notice.  It  may  be  requisite,  either  from 
the  stipulations  of  the  parties,  or  from  the  peculiar  nature  of 
the  contract ;  but  where  not  so  requisite,  he  who  has  pro- 
mised to  do  any  thing,  must  perform  his  promise  in  the  pre- 
scribed time  and  the  prescribed  way ;  or  if  none  be  pre- 
scribed, in  a  reasonable  time  and  a  reasonable  way,  without 
waiting  to  be  called  upon. 


8.  Of  impossibilify  of  performance. 

It  has  been  somewhat  questioned  how  far  the  impossibility 
of  doing  what  a  contract  requires,  is  a  good  defence  against 
an  action  for  the  breach  of  it.  If  the  performance  of  a  con- 
tract becomes  impossible  by  the  act  of  God,  that  is,  by  a 
cause  which  could  not  possibly  be  attributed  to  the  promisor, 
and  this  impossibility  was  not  among  the  probable  contin- 
gencies which  a  prudent  man  should  have  foreseen  and  pro- 
vided for,  it  should  seem  that  this  would  be  a  sufficient  de- 
fence, (w)  But  to  make  the  act  of  God  a  defence,  it  must 
amount  to  an  impossibility  of  performance  by  the  promisor; 
mere  hardship  or  difficulty  will  not  suffice,  (x)     So  the  non- 

(w)  Williams   v.  Lloyd,   W.  Jones,  tiff  demurred,  and  judgment  was  given 

179;    S.    C.   nom.    Williams   v.   Hide,  for  the  defendant. 

Palmer,  548.     In  this  case  the  dedara-  (x)  Thus  in   Bullock  v.  Dommitt,  6 

tion  stated  that  the  plaintiff  delivered  a  T.  K.  6.50,  it  was  held  that  a  lessee  of  a 

horse  to  the  defendant,  which  the  de-  house  who  covenants  generally  to   re- 

fendant  promised  to  redeliver  upon  re-  pair,  is  bound  to  rel)uild  it,  if  it  be  burn- 


quest  ;  and  that  although    he   was   re-  ed    by  an   accidental   fire.     And   Lord 

quested   to  redeliver  the  horse,  he  re-  Kenyon  said,  "  The  cases  cited  on  bc- 

fused.     The  defendant  pleaded  that  the  half  of  the  plaintiff  have  always  been 

horse  was  taken  sick,  and  died,  and  that  considered  and  acted  upon  as  law.     In 

the  plaintiff  made  the  request  after  the  the  year  1754  a  great  fire  broke  out  in 

horse  was  dead.    To  this  plea  the  plain-  Lincoln's  Inn,  and  consumed  many  of 


CII.  III.] 


DEFENCES. 


185 


pcM-formance  of  a  contract  is  not  excused  by  the  act  of  God, 
where  it  may  still  be  substantially  carried  into  effect,  although 
the  act  of  God  makes  a  literal  and  precise  performance  of  it 
impossible.  (//) 

If  one  for  a  valid  consideration  promises  another  to  do 
that  which  is  in  fact  impossible,  but  the  promise  is  not  ob- 
tained by  actual  or  constructive  fraud,  and  is  not  on  its  face 
obviously  impossible,  there  seems  no  reason  why  the  pro- 
misor should  not  be  held  to  pay  damages  for  the  breach  of 
the  contract ;  not,  in  fact,  for  not  doing  what  cannot  be  done, 
but  for  undertaking  and  promising  to  do  it.  So  if  it  becomes 
impossible  by  contingencies  which  should  have  been  foreseen 
and  provided   against  in  the  contract,  and  still  more  if  they 


tlie  chambers,  and  among  the  rest  those 
rented  by  Mr.  Wilbrabam,  and  he,  after 
taking  the  opinions  of  his  professional 
friends,  found  it  necessary  to  rebuild 
them.  On  a  general  covenant  like  the 
present,  there  is  no  douV)t  but  that  the 
lessee  is  bound  to  rebuild  in  case  of  an 
accidental  fire  ;  the  common  opinion  of 
mankind  confirms  this,  for  in  many 
cases  an  exception  of  accidents  by  fire 
is  cautiously  introduced  into  the  lease 
to  protect  the  lessee."  So  in  Breck- 
nock Co.  V.  Pritchard,  6  T.  R.  750,  it 
was  held  that  on  a  covenant  to  build  a 
bridge  in  a  substantial  manner  and  to 
keep  it  in  repair  for  a  certain  time,  the 
party  is  bound  to  rebuild  the  bridge 
though  broken  down  by  an  unusual  and 
extraordinary  flood.  So  in  Atkinson 
c.  Ritchie.  10  East,  530,  the  master  and 
the  freighter  of  a  vessel  of  400  tons  hav- 
ing mutually  agreed  in  writing,  that, 
tiie  ship  being  fitted  for  the  voyage, 
should  proceed  to  St.  Petersburg  and 
there  load  from  the  freigliter's  factor 
a  complete  cargo  of  hemp  and  iron, 
and  proceed  therewith  to  London,  and 
deliver  the  same  on  being  paid  freight, 
&c. ;  it  was  held  that  the  master,  after 
taking  in  at  St.  Petersburg  about  half 
a  cargo,  having  sailed  away  upon  a 
general  rumour  of  a  hostile  embargo 
being  laid  on  British  ships  by  tlie  Rus- 
sian government,  was  liable  in  damages 
to  the  freighter  for  the  short  delivery  of 
the  cargo,  though  the  jury  found  that 
he  acted  bond  Jide  and  under  a  reason- 
able and  well-grounded  apprehension 
at  the  time,  and  a  hostile  embargo  and 

16* 


seizure  was  in  fact  laid  on  six  weeks 
afterwards.  And  the  cases  from  6  T. 
R.  above  cited  were  approved.  So  in 
Gilpins  V.  Consequa,  1  Peters,  C.  C.  86, 
it  was  held  that  it  is  no  excuse  for  the 
non-performance  of  a  contract  to  deliver 
"  prime,"  "  first  chop "  teas,  that  the 
season  of  the  year  when  the  teas  were 
to  have  been  delivered,  was  unfavorable 
to  the  best  teas  being  in  market.  Again, 
in  the  leading  case  of  Paradine  v.  Jane, 
Aleyn,  26,  where  to  an  action  of  debt 
for  rent,  the  defendant  pleaded  that  a 
certain  German  Prince,  by  name  Prince 
Rupert,  an  alien  born,  an  enemy  to  the 
king  and  kingdom,  had  invaded  the 
realm  with  a  hostile  army,  and  with  the 
same  force  had  entered  upon  the  de- 
fendant's possession,  and  him  expelled 
and  held  out  of  possession,  whereby  he 
could  not  take  the  profits ;  upon  de- 
murrer the  plea  was  held  bad.  And 
this  difference  was  taken,  "that  where 
the  law  creates  a  duty  or  charge,  and 
the  party  is  disabled  to  perform  it  with- 
out any  default  in  him,  and  hath  no 
remedy  over,  there  the  law  will  excuse 
him.  But  when  the  party  by  his  own 
contract  creates  a  duty  or  charge  upon 
himself,  he  is  bound  to  make  it  good,  if 
he  may,  notwithstanding  any  accident 
by  inevitable  necessity,  because  he  might 
have  provided  against  it  by  his  con- 
tract." See  also  Huling  v.  Craig,  Ad- 
dison, .342. 

(y)  White  v.  Mann,  26  Maine,  361  ; 
Chapman  v.  Dalton,  Plowden,  284  ; 
Iloltham  V,  Ryland,  1  Eq.  Cas.  Abr.  18, 


186  THE  LAW  OF  CONTRACTS.  [PART  11. 

might  have  been  prevented,  the  promisor  should  be  held 
answerable.  So  if  the  impossibility  applies  to  the  pro- 
misor personally,  there  being  no  natural  impossibility  in  the 
thing,  this  will  not  be  a  sufficient  excuse,  (z)  But  if  one 
promises  to  do  what  cannot  be  done,  and  the  impossibility 
is  not  only  certain  but  perfectly  obvious  to  the  promisee,  as 
if  the  promise  were  to  build  a  common  dwelling-house  in 
one  day,  such  a  contract  must  be  void  for  its  inherent  ab- 
surdity, (a) 

That  the  illegality  of  a  contract  is  in  general  a  perfect 
defence,  must  be  too  obvious  to  need  illustration.  It  may 
indeed  be  regarded  as  an  impossibility  by  act  of  law;  and  it 
is  put  on  the  same  footing  as  an  impossibility  by  act  of  God  ; 
because  it  would  be  absurd  for  the  law  to  punish  a  man  for 
not  doing,  or,  in  other  words,  to  require  him  to  do  that  which 
it  forbids  his  doing. 

Therefore  if  one  agrees  to  do  a  thing  which  it  is  lawful  for 
him  to  do,  and  it  becomes  unlawful  by  an  act  of  the  legisla- 
ture, the  act  avoids  the  promise ;  and  so  if  one  agrees  not  to 
do  that  which  he  may  lawfully  abstain  from  doing,  but  a 
subsequent  act  requires  him  to  do  it,  this  act  also  avoids  the 
agreement,  (b)  But  if  one  agrees  to  do  what  is  at  the  time 
unlawful,  a  subsequent  act  making  the  act  lawful,  cannot 
give  validity  to  the  agreement,  because  it  was  void  at  its  be- 

(z)  See  ante,  vol.   1,  p.  384,   n.  (c).  which  entitled  to  damages,  but  it  was  a 

And  see  Pothier,  Trait^  des  Obligations,  repeal  of  the  covenant.     And  Savage, 

Pt.  1,  ch.  1,  sect.  4,  §  2.  C.  J.,  thus  remarked  upon  the  authori- 

(a)  Thus,  in  Faulkner  v.  Lowe,   2  ties:  "  There  are  but  few  authorities  on 

Exch.  597,  there  was  a  covenant  by  C.  this  question,  and  those  few  are  at  vari- 

to  pay  a  sum  of  money  to  A.,  B.,  and  ance.    The  case  of  Brason  v.  Dean,  3 

to  himself,  C.,  or  the  survivors  or  sur-  Mod.  39,  decided  in  1683,  was  covenant 

vivor  of  them  on  their  joint  account,  upon  a  charter-party  for  the  freight  of  a 

C.  being  sued  upon  this  covenant,  the  ship.     The  defendant  pleaded  that  the 

court  held  the  covenant  senseless  and  ship   was   loaded  with    French  goods 

impossilde,  and  judgment  was  given  for  prohibited  by  law  to  be  imported.    And 

the  defendant.  upon  demurrer  judgment  was  given  for 

[h]  Presb.  Churchy.  City  of  N.  York,  the  plaintiff,  for  the  court  were  all  of 

5  Cowcn,  r)38.     In  that  case  the  corpo-  opinion  that  if  the  thing  to  be  done  was 

ration  of  the  city  of  New  York  conveyed  lawful  at  the  time  when  the  defendant 

lands  for  the  purposes  of  a  church  and  entered  into  the  covenant,  though  it  was 

cemetery,  with  a  covenant  for  a  quiet  afterwards  prohibited  by  act  of  parlia- 

enjoyment,  and  afterwards,  pursuant  to  ment,  yet  the  covenant  was  binding.  But 

a   power    granted    by   the    legislature,  in  the  case  of  Brewster  r.  Kitchin,  1  Ld. 

passed  a  l)y-law  prohibiting  the  use  of  Kaym.  317,  321,  A.  1).  1698,  a  ditlercnt 

these  lands  as  a  cemetery  ;  Held,  tliat  and  a  more  rational  doctrine  is  estaljlish- 

this  was  not  a  breach  of  the  covenant  cd.    It  is  there  said,  '  For  the  difference 


ClI,  III.] 


DEFENCES. 


187 


ginning.  A  law  may,  however,  have  the  effect  of  suspending 
an  agreement  that  was  originally  valid,  and  which  it  makes 
impossible  without  violation  of  law ;  and  yet  leave  the  con- 
tract so  far  subsisting  that  upon  a  repeal  of  the  law  the 
force  and  obligation  of  the  contract  remains,  (c)  It  would 
seem  that  a  prevention  by  the  law  of  a  foreign  country  is  no 
excuse,  because  this  does  not  make  the  act  unlawful  in  the 
view  of  the  law  which  determines  the  obligation  of  the  con- 
tract. 

SECTION  IV. 

OP    DEFENCES    RESTING    UPON    THE    ACTS    OR    OMISSIONS   OF    THE 

PLAINTIFF. 

It  is  a  good  defence  to  an  action  on  a  contract,  that  the 
obligation  to  perform  the  act  required,  was  dependent  upon 
some  other  thing  which  the  other  party  was  to  do,  and  has 
failed  to  do.  And  if  before  the  one  party  has  done  any  thing, 
it  is  ascertained  that  the  other  party  will  not  be  able  to  do 
that  which  he  has  undertaken  to  do,  this  will  be  a  sufHcient 


when  an  act  of  parliament  will  amount 
to  a  repeal  rvf  a  covenant  and  when  not, 
is  this ;  when  a  man  covenants  not  to 
do  a  thing  which  was  lawful  for  him  to 
do,  and  an  act  of  parliament  comes  af- 
ter and  compels  him  to  do  it,  then  the 
act  repeals  the  covenant ;  and  vice  versa. 
But  when  a  man  covenants  not  to  do  a 
thing  which  was  unlawful  at  the  time  of 
the  covenant,  and  afterwards  an  act 
makes  it  lawful,  the  act  docs  not  repeal 
the  covenant.'  In  1  Salkeld,  198,  where 
the  same  case  is  reported,  the  proposi- 
tion is  thus  stated;  'Where  II.  cove- 
nents  not  to  do  an  act  or  thing  whicli 
was  lawful  to  do,  and  an  act  of  parlia- 
ment comes  after  and  compels  him  to 
do  it,  the  statute  repeals  tiie  covenant. 
So  if  H.  covenants  to  do  a  tiling  which 
is  lawful,  and  an  act  of  parliament 
comes  in  and  hinders  him  from  doing 
it,  the  covenant  is  repealed.  13ut  if  a 
man  covenants  not  to  do  a  thing  which 
then  was  unlawful,  and  an  act  conies 
and  makes  it  lawful  to  do  it,  such  act 


of  parliament  does  not  repeal  the  cove- 
nant.' " 

(c)  Thus  in  Baylies  v.  Fettyplace, 
7  Mass.  325,  it  was  held  that  a  law 
of  the  United  States  laying  an  em- 
bargo for  an  unlimited  time,  and  af- 
terwards repealed,  did  not  extinguish  a 
promise  to  deliver  debentures,  but  ope- 
rated as  a  suspension  only  during  the 
continuance  of  the  law.  So  in  Hadley 
V.  Clarke,  8  T.  R.  259,  where  the  de- 
fendants contracted  to  carry  the  plain- 
tiff's goods  from  Liverpool  to  Leghorn, 
and  on  the  vessel's  arrival  at  Falmouth 
in  the  course  of  her  voyage,  an  embargo 
was  laid  on  her  "  until  the  further  order 
of  council ; "  it  was  held  that  such  em- 
bargo only  suspended  the  execution, 
but  did  not  dissolve  the  contract  be- 
tween tiie  j)artics,  and  that  even  after 
two  years,  when  tlie  embargo  was.  taken 
oft",  the  defendants  were  answerable  to 
the  plaintiff  in  damages  for  tlie  non- 
performance of  their  contract. 


188 


THE   LAW   OF   COKTRACTS. 


[part  n. 


reason  why  the  first  party  should  do  nothing,  (d)  And  this 
excuse  is  valid,  although  the  omission  by  the  other  party  to 
do  the  thing  required  of  him,  was  prevented  by  causes  which 
he  could  neither  foresee  nor  control.  And  even  if  it  is  pro- 
vided that  the  thing  shall  be  done  "  unless  prevented  by  un- 
avoidable accident,"  the  accident  to  excuse  the  not  doing, 
must  be  not  only  unavoidable,  but  must  render  the  act  physi- 
cally impossible,  and  not  merely  unprofitable  and  inexpedient 
by  reason  of  an  increase  of  labor  and  cost,  (e) 

If  one  bound  to  perform  a  future  act,  before  the  time  for 
doing  it  declares  his  intention  not  to  do  it,  this  is  no  breach 
of  his  contract ;  (/)  but  if  his  declaration  be  not  withdrawn 
when  the  time  comes  for  the  act  to  be  done,  it  consti- 
tutes a  sufficient  excuse  for  the  default  of  the  other  party. 
In  all  cases  whatever,  a  promisor  will  be  discharged  from 
all  liability  when  the  non-performance  of  his  obligation 
is  caused  by  the  act,  or  the  fault,  of  the  other  contracting 
party,  (g) 


{d)  Caines  v.  Smith,  15  M.  &  W.  188, 
where  defendant  had  promised  to  marry 
pkintiff,  but  married  another  woman. — 
To  an  action  for  breach  of  promise,  a 
plea  by  defendant  that  he  had  never 
been  requested  by  the  phiintiff  to  per- 
form his  contract  was  held  ill.  John- 
ston V.  Caulkins,  1  Johns.  Cas.  116, 
where  in  a  similar  action  it  was  held 
tliat  if  the  defendant  has  absconded,  the 
jdaintift'  need  not  show  an  offer  to  marry 
him.  And  sec  other  instances  of  the 
same  principle  in  Short  v.  Stone,  8 
Q.  B.  Hep.  358;  Lovelock  v.  Franklyn, 
Id.  371  ;  Ford  v.  Tiley,  6  B.  &  C.  325  ; 
Bowdell  V.  Parsons,  10  East,  359. 

(e)  See  ante,  p.  184,  n.  (.r.) 

(/)  Phillpots  V.  Evans.  5  M.  &  W. 
477  ;  Ripley  v.  McClure,  4  Exch.  R. 
345 ;  Lei;,'h  v.  Paterson,  2  J.  B.  Moore, 
588.  This  principle,  however,  is  drawn 
in  question  by  the  recent  case  of  Iloch- 
ster  V.  l)c  Latour,  20  Eii<,'.  Law  &  Eq. 
1 57,  where  it  was  held  that  if  A.  engages 
to  employ  B.  in  his  service,  the  term  to 
commence  at  a  future  day,  and  before 
that  day  A.  dianges  his  mind  and  refuses 
to  employ  him,  this  is  a  breach  of  the 
contract,  and  B.  may  have  his  action 
for  such  breach  immediateli/,  and  is  not 
bound  to  wait  until  the  day  the  service 


was  to  commence.  A.  in  such  case  has 
no  right  to  a  locus  panitentiw.  See  the 
case  fully  stated,  ante,  p.  179,  n.  {t). 
So  it  was  held  in  Cort  v.  Ambcrgate, 
&c.  Railway  Co.  6  Eng.  Law  &  Eq.  R. 
230,  that  where  there  is  an  executory 
contract  for  the  manufacturing  and  sup- 
ply of  goods  from  time  to  time,  to  be 
paid  for  after  delivery,  if  the  purchaser, 
Jiaving  accepted  and  paid  for  a  portion 
of  the  goods  contracted  for,  gives  notice 
to  the  vendor  not  to  manufacture  any 
more,  as  he  has  no  occasion  for  them, 
and  will  not  accept  or  pay  for  them,  the 
vendor  having  been  desirous  and  able 
to  complete  the  contract,  he  may,  with- 
out manufacturing  and  tendering  the 
rest  of  the  goods,  maintain  an  action 
against  the  purchaser  for  breach  of  the 
contract. 

(y)  Tims,  where  one  was  liound  to 
deliver  a  deed  on  a  day  certain,  and  at 
the  day  was  ready  with  the  deed,  and 
would  have  tendered  it  but  for  the  eva- 
sion of  the  other  party,  this  Mas  held  to 
be  equivalent  to  a  tender.  Borden  v. 
Borden,  5  Mass.  G7.  And  see  Com. 
Dig.  Condition,  L.  (6);  Goodwin  v. 
Ilolbrook,  4  Wend.  377;  Whitney  v. 
Si)encer,  4  Cow.  39  ;  People  v.  Bartlctt, 
3  Hill,  570. 


CII.  III.]  DEFENCES.  189 

The  validity  of  many  of  these  defences,  resting  upon  the 
act  or  default  of  the  other  party,  must  depend  upon  the  ques- 
tion, which  is  sometimes  diflicult,  whether  the  contracts  are 
in  fact  dependent,  or  independent.  There  are  cases,  and 
especially  some  early  ones,  which  seem  to  be  severe,  and 
more  technical  than  rational;  but  of  late  the  courts  incline 
to  decide  these  questions  as  good  sense  and  common  justice 
require.  But  there  are  rules  by  which  they  are  guided  in 
this  matter,  if  not  controlled  ;  and  we  would  add  to  what  we 
have  already  said  on  this  subject,  that  the  classes  of  engage- 
ments contained  in  one  contract  —  dependent,  concurrent, 
and  independent  —  may  be  thus  distinguished.  Where  the 
agreements  go  to  the  whole  of  the  consideration  on  both 
sides,  the  promises  are  dependent,  and  one  of  them  is  a  con- 
dition precedent  to  the  other.  If  the  agreements  go  to  a  part 
only  of  the  consideration  on  both  sides,  and  a  breach  may 
be  paid  for  in  damages,  the  promises  are  so  far  independent. 
If  money  is  to  be  paid  on  a  day  certain,  in  consideration  of 
a  thing  to  be  performed  at  an  earlier  day,  the  performance  of 
this  thing  is  a  condition  precedent  to  the  payment ;  and  if 
the  money  is  to  be  paid  in  instalments,  some  before  a  thing 
is  to  be  done,  and  some  when  it  is  done,  the  doing  of  the 
thing  is  not  a  condition  precedent  to  the  former  payments, 
but  is  to  the  latter.  And  if  there  is  a  day  for  the  payment 
of  the  money,  and  this  comes  before  the  day  fixed  for  the 
doing  of  the  thing,  or  before  the  time  when  the  thing,  from 
its  nature,  can  be  performed,  then  the  payment  is  at  all  events 
obligatory,  and  an  action  may  be  brought  for  it  independ- 
ently of  the  act  to  be  done.  Concurrent  promises  are  those 
where  the  acts  to  be  performed  are  simultaneous,  and  either 
party  may  sue  the  other  for  a  breach  of  the  contract,  on 
showing,  either,  that  he  was  able,  ready,  and  willing  to  do 
his  act  at  the  proper  time  and  in  the  proper  way,  or  that  he 
was  prevented  from  doing  it,  or  being  so  ready  to  do  it,  by 
the  act  or  default  of  the  other  contracting  party.  (A) 

The  defendant  may  rely  on  the  fact  that  the  contract  has 
been  rescinded ;  and  this  may  have  been  done  by  mutual 
consent,  or  by  the  plaintiff',  who  had  the  right  to  do  so,  or  by 

{h)  See  this  subject  considered  and   the  authorities  ciicd.  ur.lc^  p.  CG,  d  seq. 


190 


THE   LAW   OF   CONTRACTS. 


[PAllT  II. 


the  defendant,  if  he  had  the  right,  (i)  Generally,  as  a  con- 
tract can  be  made  only  by  the  consent  of  all  the  contracting 
parties,  it  can  be  rescinded  only  by  the  consent  of  all.  (j) 
But  this  consent  need  not  be  expressed  as  an  agreement,  (k) 
If  either  party,  without  right,  claims  to  rescind  the  contract, 
the  other  party  need  not  object,  and  if  he  permit  it  to  be  rescind- 


()')  But  where  a  party  has  a  right  to 
rescind  a  contract,  and  no  specified  time 
is  allowed,  he  must  rescind  witliin  a 
seasonable  time.  Hodgson  v.  Davies, 
2  Camph.  530 ;  Okell  v.  Smith,  1 
Starkie,  107^  Prosser  v.  Hooper,  1 
Moore,  106.  Which  is  a  question  of  law 
for  the  <'ourt,  and  not  of  fact  for  the 
jury.  Kingsley  v.  Wallis,  14  Maine, 
57  ;  Holbrook'  v-  Burl,  22  Pick.  546. 
One  party  may  have  a  right  to  rescind 
a  contract,  which  may  yet  be  binding 
upon  the  other,  and  although  the  con- 
tract was,  in  a  certain  event,  by  its  terms 
to  be  "  null  and  void."  Thus,  where 
by  Stat.  17  Geo.  3,  c.  50,  §  8,  the  vendor 
at  an  auction  was  impowered  to  make 
it  a  condition  of  sale  tiiat  the  purchaser 
should  pay  the  auction-duty  in  addition 
to  the  purchase-money,  and  it  was  de- 
clared that  upon  his  neglect  or  refusal 
to  pay  the  same,  the  bidding  "  should 
be  null  and  void  to  all  intents  and  pur- 
poses ;  "  it  was  hehl  that  the  contract  is 
not  by  reason  of  such  neglect  or  refusal 
absolutely  void,  but  voidable  only,  at  the 
option  of  the  vendor.  Malins  v.  Free- 
man, 6  Scott,  187. 

( j)  Whether  there  has  been  a  rescis- 
sion of  the  contract  is  a  question  for  the 
jury.  See  Fitt  v.  Cassanet,  4  M.  &  G. 
898. 

(k)  Tlie  rescission  by  one  party  may 
be  as  strongly  expressed  by  acts  as  by 
words.  Thus  in  Goodrich  v.  LafHin, 
1  Pick.  57,  A.  agreed  to  deliver  to  B. 
some  step  stones  which  were  to  be  paid 
for  one  half  in  money  and  one  half  in 
goods.  The  stones  were  delivered,  and 
B.  delivered  some  of  the  goods  upon 
the  special  contract.  B.  having  sued 
A.  and  recovered  judgment  for  the 
value  of  the  goods  delivered,  declar- 
ing n]»on  tlic  common  (;ounts  only,  it 
was  held  that  A.  might,  vjum  the  com- 
mon counts  only,  recover  the  value  of  the 
stones.  So  in  Hill  v.  Green,  4  Pick. 
114,  by  a  contract  under  seal  the  plain- 
tiff agreed  that  his  son,  a  minor,  should 
work  for   the   defendant  nine  months, 


and  the  defendant  agreed  to  give  him 
therefor  certain  chattels,  which  were  de- 
livered forthwith,  but  were  to  remain 
the  property  of  the  defendant  until  the 
service  should  be  performed.  The  plain- 
tiff sold  the  chattels  to  a  stranger,  and 
the  boy  was  afterwards  wrongfully  turn- 
ed away  by  the  defendant  before  the 
expiration  of  the  term.  The  defendant 
ixclaimed  the  chattels,  and  tlie  vendee, 
knowing  all  the  facts,  settled  the  de- 
mand by  paying  him  a  sum  of  money. 
Held,  that  the  written  contract  was  re- 
scinded and  that  the  plaintiflt"  was  enti- 
tled to  recover  on  a  quantum  meruit 
for  the  service  performed,  but  that  nei- 
ther the  plaintiff  nor  his  vendee  could 
recover  back  the  money  paid  to  the 
defendant.  In  Quincy  v.  Tilton,  5 
Greenl.  277,  it  was  held  that  where  par- 
tics  agree  to  rescind  a  sale  once  made 
and  perfected  without  fraud,  the  same 
formalities  of  delivery,  &c.,  are  neces- 
sary to  revest  the  property  in  the  origi- 
nal vendor  which  were  necessary  to  pass 
it  from  him  to  the  vendee.  In  James 
V.  Cotton,  7  Bing.  266,  the  plaintiff  en- 
gaged to  lei  land  to  the  defendant  on 
building  leases,  and  to  lend  him  £6,000 
to  assist  him  in  the  erection  of  20  houses 
on  the  land.  Defendant  agreed  to  build 
the  houses,  and  convey  tliem  as  security 
for  the  loan,  which  was  to  be  paid  at  a 
time  fixed.  When  6  houses  had  been 
built,  and  part  of  the  £6,000  had  been 
advanced,  plaintiff  requested  defendant 
not  to  go  on  with  tlie  other  14  houses. 
Defendant  desisted.  Held,  that  this 
amounted  to  a  rescission  of  the  con- 
tract by  mutual  consent,  and  the  plain- 
tift'  was  allowed  to  recover  the  amount 
advanced  on  a  count  for  money  lent. — 
If  by  the  terms  of  the  contract  it  is  left 
in  tiie  jjower  of  the  jjlaintifT  to  rescind 
by  any  act  of  his,  and  he  docs  it,  or  if 
the  defendant  afterwards  consents  to  its 
being  rescinded,  the  plaintiff  may  treat 
the  contract  as  rescinded.  Towers  v. 
Barrett,  I  T.  II.  133. 


en.  III.] 


DEFENCES. 


191 


ed,  it  will  be  done  by  mutual  consent.  Nor  need  this  purpose 
of  rescinding  be  expressly  declared  by  the  one  party,  in  order 
to  give  to  the  other  the  right  of  consenting,  and  so  rescind- 
ing. There  may  be  many  acts  from  which  the  opposite 
party  has  a  right  to  infer  that  the  party  doing  them  would 
rescind;  (/)  and  generally  where  one  fails  to  perform  his  part 
of  the  contract,  or  disables  himself  from  performing  it,  (m) 
the  other  party  may  treat  the  contract  as  rescinded,  (ii)  But 
not  if  he  has  been  guilty  of  a  default  in  his  engagement,  for 
he  cannot  take  advantage  of  his  own  wrong  to  defeat  the 
contract.  Nor  if  the  failure  of  the  other  party  be  but  partial, 
leaving  a  distinct  part  as  a  subsisting  and  executed  consi- 
deration, and  leaving  also  to  the  other  party  his  action  for 
damages  for  the  part  not  performed,  (nn)  Generally,  no  con- 
tract can  be  rescinded  by  one  of  the  parties,  unless  both  can  be 
restored  to  the  condition  in  which  they  were  before  the  con- 


(l)  See  preceding  note. 

(m)  Thus  in  Keys  i'.  Harwood,  2 
Com.  B.  905,  A.  agreed  to  board  B.  and 
to  receive  pay  in  certain  goods.  Be- 
fore the  time  of  payment  arrived,  B. 
allowed  those  goods  to  be  seized  and 
sold  on  execution  against  him.  This 
was  held  a  rescission  of  the  contract, 
and  A.  was  allowed  to  recover  on  a 
general  count,  and  without  reference  to 
the  special  contract.  So  in  Planche 
V.  Colburn,  8  Bingham,  14,  where  A. 
agreed  to  write  a  treatise  for  a  periodical 
publication,  which,  before  the  treatise 
was  com])leted,  the  defendant  discon- 
tinued, this  was  considered  an  aban- 
donment of  tlie  contract  by  the  defend- 
ant, and  the  plaintiif  was  allowed  to 
recover  on  a  quantum  meruit,  without 
completing  the  treatise-  See  Shaw  v. 
The  Turnpike  Co.  2  Penn.  454,  3  id. 
445.  In  Dubois  v.  Delaware  Canal  Co. 
4  Wend.  285,  Marci/,  J.,  said  : — "Every 
breach  of  a  special  agreement  by  one 
party  does  not  authorize  the  other  to 
treat  it  as  rescinded  ;  but  there  are  some 
breaches  that  do  amount  to  an  abandon- 
ment of  it.  There  is  not,  pcrhajjs,  any 
precise  rule,  which,  when  applied  to  the 
breach  of  a  contract,  certainly  settles 
the  question  whether  it  is  thereby  aban- 
doned or  not ;  but  if  the  act  of  one 
party  be  such  as  necessarily  to  prevent 
the  other  from  performing  on  his  part 


according  to  the  terms  of  his  agree- 
ment, the  contract  may,  I  think,  be  con- 
sidered as  rescinded." 

{n)  But  this  is  not  always  the  case. 
Thus  in  Weaver  v.  Sessions,  6  Taun- 
ton, 154,  the  plaintiif  covenanted  to 
furnish  the  defendant  ail  tlie  malt  he 
should  want  for  a  certain  specified 
period,  which  should  be  "  good,  well 
dried  and  marketable."  The  defendant 
covenanted  to  buy  all  his  malt  of  the 
the  plaintiff,  and  not  to  buy  elsewhere, 
unless  the  plaintiff  neglected  or  refused 
to  deliver  liim  good  malt  on  request. 
The  plaintiff  having  delivered  bad  malt, 
the  defendant  bought  of  others,  without 
having  first  requested  tiie  plaintiff  to 
furnish  better.  The  court  held  that  the 
non-compliance  by  the  plaintiff,  merely 
in  delivering  bad  malt  for  good,  did  not 
authorize  a  rescission  of  the  contract, 
and  that  the  defendant  was  liable  for 
purchasing  of  others,  before  the  plaintiff 
had  refused  or  nee/lcctcd  on  request  to  fur- 
nish better. 

(nn)  In  Franklin  i'.  Miller,  4  Ad.  & 
Ell.  599,  Littledale,  J.,  says,  "It  is  -a 
clearly  recognized  principle  that,  if 
there  is  only  a  partial  failure  of  per- 
formance by  one  jiiirty  to  a  contract, 
for  which  there  may  be  a  compensation 
in  damages,  the  contract  is  not  put  an 
end  to."     See  ante,  p.  43,  n. 


192 


THE   LAW   OF   CONTRACTS. 


[part  II. 


tract  was  made,  (o)     If,  therefore,  one  of  the  parties  has  de- 
rived an  advantage  from  a  partial  performance,  he  cannot  hold 


(o)  Hunt  V.  Silk,  5  East,  449,  the 
leadiiif^  case  upon  this  point.  There 
A.  agreed,  in  consiilcration  of  .£10,  to 
let  a  house  to  B.,  which  A.  was  to  re- 
pair and  execute  a  lease  of  iridtin  kn 
days,  hut  B.  was  to  have  immediate 
possession,  and  in  consideration  of  the 
aforesaid  was  to  execute  a  counterpart 
and  pay  tiie  rent.  B.  took  possession 
and  paid  .£10  immediately,  but  A.  neg- 
lected to  execute  the  lease  and  make 
the  repairs  beyond  the  period  of  the  ten 
days,  notwithstanding  which  B.  still 
continued  in  possession  :  Held  that  B. 
could  not,  by  quitting  the  house  foi-  the 
default  of  A.,  rescind  the  contract  and 
recover  back  the  £10  in  an  action  for 
money  had  and  received,  but  could  only 
declare  for  a  breach  of  the  special  con- 
tract; for  a  contract  cannot  be  rescind- 
ed by  one  party  for  the  defoult  of  the 
other,  unless  both  can  be  put  in  statu 
quo  as  before  the  contract;  and  here  B. 
had  had  an  intermediate  possession  of 
the  premises  under  the  agreement.  And 
Lord  Ellenhorongh  said  :  —  "  Where  a 
contract  is  to  be  rescinded  at  all,  it  must 
be  rescinded  in  tuto,  and  the  parties  put 
i?i  statu  quo.  But  here  was  an  inter- 
mediate occupation,  a  part  execution  of 
the  agreement,  which  was  incapable  of 
being  rescinded.  If  the  plaintiff  might 
occupy  the  premises  two  days  l)eyond 
the  time  when  the  repairs  were  to  iuxve 
been  done  and  the  lease  executed,  and 
yet  rescind  the  contract,  why  might  he 
not  rescind  it  after  a  twelvemonth  on 
the  same  account  ?  This  objection  can- 
not be  gotten  rid  of:  the  parties  cannot 
be  put  in  statu  quo."  So  in  Becd  v. 
Blandford,  2  Y.  &  Jer.  278,  where  the 
master  and  part-owner  of  a  vesselagreed 
to  purchase  the  moiety  of  his  partner, 
and  having  jiaid  the  f)urchase-moncy 
and  received  the  title  deeds,  which  he 
deposited  as  a  security  with  a  third  per- 
son, had  the  entire  possession  of  the 
vessel  given  up  to  him,  but  his  partner 
afterwards  refused  to  execute  a  bill  of 
sale,  or  refund  the  money  ;  it  was  held 
that  an  action  for  money  had  and  re- 
ceived would  not  lie  to  recover  the  pur- 
chase-money, as  the  parties  could  not 
be  restored  to  their  original  situation. 
AUrander,  ().  B.,  said  : — "  In  order  to 
sustain  an  action  in  this  form,  it  is  ne- 
cessary that   the  i>artics  should,  by  the 


plaintiff's  recovering  the  verdict,  be 
placed  in  the  same  situation  in  which 
they  originally  were  before  the  contract 
was  entered  into.  The  plaintiff  has,  by 
his  intermediate  occupation,  derived  the 
profits  of  the  vessel ;  if  he  has  not,  he 
might  have  done  so  ;  and  it  is  impossible 
to  say  what  the  defendant  miglit  have 
made  had  he,  during  tiie  time,  had  any 
control  over  it.  Under  these  circum- 
stances, it  cannot  be  said,  that  the  situa- 
tion of  the  jiarties  has  not  been  altered  ; 
and  that,  by  the  plaintiff's  recovering  in 
this  action,  their  original  position  maybe 
restored.  Besides  this,  the  defendant's 
title  deeds  have  been  deposited  by  the 
plaintiff"  as  a  security  for  tiie  money  ad- 
vanced to  him.  How  could  the  defend- 
ant, in  this  respect,  be  restored  to  his 
original  situation  by  this  action  ?  He 
is  at  the  mercy  of  the  defendant  for  his 
title  deeds,  and  cannot  recover  them  by 
any  process  in  this  cause.  I  think  the 
objection  is  unanswerable,  and  that  the 
rule  for  a  nonsuit  must  be  made  abso- 
lute." And  Vauj/han,  B.,  said  : — "  The 
decision  in  Hunt  v.  Silk  lays  down  a 
very  clear  and  just  rule  in  these  cases : 
if  the  circumstances  be  such,  that,  by 
rescinding  the  contract,  the  rights  of 
neither  party  are  injured,  in  that  case, 
if  one  contracting  party  will  not  fulfil 
his  part  of  the  engagement,  the  other 
may  rescind  tlic  contract,  and  maintain 
his  action  for  money  had  and  received, 
to  recover  back  what  he  may  have  paid 
upon  the  faith  of  it." — And  where  one 
party  elects  to  rescind  a  contract  for 
fraud,  he  must  return  the  consideration 
received  before  any  right  of  action  ac- 
crues, and  it  is  not  enough  to  notify  the 
party  defrauding,  and  call  upon  him  to 
come  and  receive  the  goods.  Norton  v. 
Young,  3  Greenl.  30.  But  in  the  case 
of  Masson  v.  Bovet,  1  Dcnio,  69,  it  was 
said  that  though  the  general  rule  is,  that 
the  party  who  would  rescind  a  contract 
on  the  ground  of  fi-aud,  for  the  purpose 
of  recovering  what  he  has  advanced 
upon  it,  must  restore  the  other  party  to 
the  condition  in  which  he  stood  before 
the  contract  was  nuxdc  ;  yet,  where  the 
])arty  who  practised  the  fiaud  has  en- 
tangled and  complicated  the  sulyect  of 
the  contract  in  such  a  manner  as  to  ren- 
der it  impossilile  that  he  should  be  re- 
stored to  his  former  condition,  the  party 


en.  III.]  DEFENCES.  193 

this  and  consider  the  contract  as  rescinded  because  of  the 
non-performance  of  the  residue  ;  (p)  but  must  do  all  that  the 
contract  obliges  him  to  do,  and  seek  his  remedy  in  damages. 
And  if  the  thing  to  be  done  on  the  one  side  as  the  conside- 
ration of  the  agreement  on  the  other  side,  is  to  be  done  at 
several  times,  a  failure  at  one  time  will  not  generally  author- 
ize the  other  party  to  treat  the  whole  contract  as  rescinded  ; 
although,  even  in  such  continuing  cases,  this  partial  failure 
may  perhaps  be  so  destructive  of  the  contract  as  to  give  the 
other  party  the  right  to  consider  it  as  wholly  rescinded,  {q) 


SECTION  V. 
ACCORD   AND   SATISFACTION. 

Another  sufficient  defence  is  accord  and  satisfaction ; 
which  is  substantially  another  agreement  between  the  parties 
in  satisfaction  of  the  former  one,  and  an  execution  of  the 
latter  agreement.  This  is  the  meaning  of  the  ancient  rule, 
that  accord  without  satisfaction  is  no  bar  to  an  action  ;  and 
it  used  to  be  laid  down  in  the  ea:rlier  books  with  great  exact- 
ness, that  the  execution  of  the  accord  must  be  complete  and 
perfect,  (r)     So,  indeed,  it  must  be  now,  except  where  the 

injured,  upon  restoring,  or  offering  to  sold   and   delivered,  it    is  no   defence 

restore  what  he  has  received,  and  doing  that  the  goods  were  sold  in  pursuance 

whatever  is  in  his  power  to  undo  what  of  a  special  contract,  which  was  after- 

has  been  done  in  the  execution  of  the  wards  rescinded  and  annulled  by  both 

contract,  may  rescind  it  and  recover  parties.    Edwards  v.  Chapman,  1    M. 

what  he   has   advanced.      See   further  &  W.  231,  Parl-e,  B.,  saying: — "A  duty 

upon  this  point,  per  Tindal,  C.  J-,  in  arises  from  the  contract  of  sale,  which 

Fitt  V.  Cassanet,  4  M.  &  G.  903  ;  Black-  cannot  be  got  rid  of  without  an  accord 

burn  V.  Smith,  2  Exch.  R.  783 ;  Jun-  and  satisfaction." 

kins  V.  Simpson,  14  Maine,  364;  Cool-  (q)  See  supra,  n.  (n). 

idge  y.Brigham,  1  Mete.  547  ;  Peters  r.  (r)  Cock  v.  Honychurch,   T.    Raym. 

Gooch,  4  Biackf.  515;  Turnpike  Co.  v.  203,   2   Keble.   690.     Trespass  for  an 

Commonwealth,  2  Watts,  433 ;  Brown  assault.     Pica,  a  concord  between   the 

V.  Witter,  10  Ohio,  142  ;  Allen  v.  Ed-  parties  that  the  defendant  should  pay 

gerton,  3  Verm.  442  ;  Luey  v.  Bundy,  plaintiff  £3,  and  his  attorney's  bill,  and 

9  N.  H.  R.  298  ;  Stevens  v.  Gushing,  1  that  he  had  paid  the  £3,  and  was  ready 

N.  H.  17  ;  Perley  y.  Balch,  23  Pick.  283.  to  pay  the  attorney's  bill,  but  he  never 

(p)  And  if  one  party  has  derived  all  showed  him  any.      This  was  held  no 

the   intended   benefit   from  a  contract,  defence,   because   the  accord   was   not 

the  agreement  to  rescind  the  contract  loholly  executed.    See  also  Peytoe's  case, 

will  not   bar  the   plaintiff  from   some  9  Rep.  79  b  ;  Anonymous,  Cro.  Eliz.  46  ; 

remedy.    Thus  to  an  action  for  goods  Case  r.  Barber,  T.  Raym.  450,  T.Jones, 

VOL.  II.  17 


194 


TUE   LAW   OF   CONTRACTS. 


[part  II. 


new  promise  itself  is  by  the  accord  or  agreement  the  satis- 
faction for  the  debt  or  broken  contract.  The  party  holding 
the  claim  may  agree  to  take  a  new  promise  of  the  other  in 
satisfaction  of  it ;  or  he  may  agree  to  receive  a  new  under- 
taking when  the  same  shall  be  executed,  as  a  satisfaction. 
In  either  case  he  will  be  held  to  his  bargain,  and  only  to 
that,  {s)     Whether  the  new  promise  shall  have  by  itself  the 


158  ;  Bree  v.  Savlcr,  2  Kcble.  332  ;  Hall 
V.  ScabriRht,  2'Keble,  534;  Brown  v. 
Wade,  2  Keble,  851;  Frentrcss  v-  Marklc, 
2  Iowa  R.  553  ;  Coit  v.  Houston,  3 
Johns.  Cas.  243  ;  Watkinson  v.  Inglcs- 
by,  5  Johns.  386 ;  Frost  v.  Johnson,  8 
Ohio,  393  ;  Woodruff  v.  Dobbins,  7 
Blackf.  582  ;  Ballard  v.  Noaks,  2  Pike, 
45  ;  Brooklyn  Bank  v.  De  Grauw,  23 
Wcnd.  342. 

(s)  Babcock  v.  Hawkins,  23  Verm.  R. 
561.  This  was  an  action  of  book  ac- 
count. It  appeared  that  after  the  com- 
mencement of  the  suit,  the  parties  met, 
and  the  defendant  agreed  to  give  a  note 
for  thirty  dollars  to  the  plaintiff,  and 
pay  all  the  plaintiff's  costs  in  the  suit, 
except  the  writ  and  service.  The  de- 
fendant executed  the  note  and  agreed 
to  pay  the  costs,  as  above  stated  :  and 
the  plaintiff  then  executed  and  delivered 
to  him  a  receipt  in  these  words  : — "  Re- 
ceived of  Peter  Hawkins  thirty  dollars 
by  note  given  per  this  date,  in  full  to 
settle  all  book  accounts  up  to  this  date ; " 
and  the  suit,  as  well  as  the  subject-mat- 
ter of  the  suit,  was  considered  as  settled 
bv  the  parties.  The  defendant  never 
paid  any  portion  of  the  costs,  but  paid 
part  of  the  note ;  and  for  the  reason 
that  the  defendant  had  not  paid  the  costs 
the  plaintiff  refused  to  discontinue  the 
suit.  Upon  these  facts,  found  by  an 
auditor,  the  county  court  rendered  judg- 
ment for  the  defendant,  which  was  af- 
firmed by  the  supreme  court.  Rcdjield, 
J.,  in  delivering  the  opinion  of  the  court, 
said : — "  We  think  it  must  be  regarded  as 
fully  settled,  that  an  agreement  upon 
sufficient  consideration,  fully  executed, 
so  as  to  have  operated  in  the  minds  of 
the  parties,  as  a  full  satisfaction  and 
settlement  of  a  preexisting  contract  or 
account  between  the  parties,  is  to  be 
regarded  as  a  valid  settlement,  whctlier 
the  new  contract  be  ever  paid  or  not, 
and  that  the  party  is  bound  to  sue  ujjou 
the  new  contract,  if  such  were  the  agree- 
ment of  the  parties.    This  is  certainly 


the  common  understanding  of  tlie  mat- 
ter. It  is  reasonable,  and  we  think  it  is 
in  accordance  with  the  strictest  jirinci- 
ples  of  technical  law.  1.  There  is  no 
want  of  consideration  in  any  such  case, 
where  one  contract  is  substituted  for 
another,  and  especially  so  where  the 
amount  due  upon  the  former  contract 
or  account  is  matter  of  dispute.  The 
liquidating  a  disputed  claim  is  always 
a  sufficient  consideration  for  a  new  pro- 
mise. Holcomb  V.  Stimpson,  8  Vt.  151. 
2.  The  accord  is  sufficiently  executed, 
when  all  is  done  which  the  party  agrees 
to  accept  in  satisfaction  of  the  preex- 
isting obligation.  This  is  ordinarily 
a  matter  of  intention,  and  should  be 
evidenced  by  some  express  agreement 
to  that  effect,  or  by  some  une(iuivocal 
act  evidencing  such  a  purpose.  This 
may  be  done  by  surrender  of  former 
securities,  by  release  or  receipt  in  full, 
or  in  any  other  mode.  All  that  is  re- 
quisite is,  that  the  debtor  should  have 
executed  the  new  contract  to  that  point 
whence  it  was  to  operate  as  satisfaction 
of  the  preexisting  liability,  in  the  pre- 
sent tense.  That  is  shown  in  the  pre- 
sent case,  by  executing  a  receipt  in  full, 
the  same  as  if  the  old  contract  had  been 
upon  note,  or  bill,  and  the  papers  had 
been  surrendered.  3.  In  every  case 
where  one  security  or  contract  is  agreed 
to  be  received  in  lieu  of  another,  whe- 
ther the  substituted  contract  be  of  tiic 
same  or  a  higher  grade,  tlic  action,  in 
case  of  failure  to  perform,  must  be  upon 
the  substituted  contract.  And  in  the 
present  case,  as  it  is  obvious  to  us,  that 
the  plaintiffs  agreed  to  accept  the  note, 
and  the  defendant's  promise  to  pay  the 
costs  in  full  satisAu'lion,  and  in  the 
place  of  tlie  former  liability,  the  defend- 
ant remained  liable  only  ui)Oii  the  new 
contract.  4.  In  all  cases  where  tlie 
part}'  intends  to  retain  his  former  re- 
medy he  will  neither  surrender  or  re- 
lease it ;  and  wliether  the  party  sliall  be 
permitted  to  sue  upon  his  original  con- 


CH.  III.] 


DEFENCES. 


195 


elTcct  of  satisfying  the  original  claim  must  be  determined  by 
a  construction  of  the  new  agreement.  Generally,  but  not 
universally,  if  the  new  promise  be  founded  upon  a  new  con- 
sideration, and  is  clearly  binding  on  the  original  promisor, 
this  is  a  satisfaction  of  the  former  claim  ;  (t)  and  otherwise 
it  is  no  satisfaction.  («)  But  even  this  last  kind  of  promise, 
if  it  be  fully  performed,  at  the  right  time  and  in  the  right 
way,  (and  not  merely  tendered)  may  become  then  a  satisfac- 


tract  is  matter  of  intention  always,  un- 
less the  new  contract  be  of  a  higher 
grade  of  contract,  in  which  case  it  will 
always  merge  the  former  contract,  not- 
withstanding the  agreement  of  the  debtor 
to  still  remain  liable  upon  the  original 
contract."  So  in  Com.  Dig.  tit.  Accord, 
(B.  4.)  it  is  said  that  "  an  accord,  ivith 
mutual  promises  to  perform,  is  good  ; 
though  the  thing  be  not  performed  at 
the  time  of  the  action,  for  the  party  has 
A  remedy  to  compel  the  performance. 
Yet  the  remedy  ought  to  be  such  that 
the  party  might  have  taken  it  upon  the 
mutual  promise  at  the  time  of  tlie  agree- 
ment." And  in  Sand  v.  Rhodes,  1  M. 
&  W.  153,  wliich  was  assuvipsit  by  the 
indorsee  against  the  acceptor  of  a  bill 
of  exchange  for  £43,  the  defendant 
pleaded  that,  after  the  bill  became  due, 
one  G.  P.,  the  drawer  of  the  bill,  made 
his  promissory  note  for  £44,  and  deliv- 
ered the  same  to  the  plaintiff  in  full 
satisfaction  and  discharge  of  the  bill. 
Replication,  that  although  he.  the  plain- 
tiff accepted  the  note  in  full  satisfaction 
and  discharge  of  the  bill,  yet  that  the 
note  was  not  paid  when  due,  and  still 
remained  unpaid  ; — Held,  that  the  repli- 
cation was  bad,  and  that  the  plaintiff, 
having  accepted  the  note  in  full  satis- 
faction and  discharge  of  the  bill,  could 
not  sue  upon  the  latter.  Held,  also, 
that  the  plea  was  sufficient.  And  see 
to  the  same  effect  Good  v.  Cheesnian,  2 
B.  &  Ad.  328  ;  Evans  v.  Powis,  1  Exch. 
601.  But  the  rule  established  by  these 
cases  has  made  no  material  change  in 
the  form  of  the  plea.  It  is  still  true 
that  an  accord  without  satisfaction  is 
not  good.  Tiierefore  if  a  defendant  in- 
tends to  set  up  a  new  promise  without 
performance  in  bar  of  an  action,  he  must 
take  care  to  aver  distinctly  that  it  was 
agreed  that  the  new  promise  should  be 
received  in  satisfaction.  If  he  sets  forth 
the  agreement  in  such  a  manner  that  it 


appears  upon  the  face  of  the  plea  that 
performance,  and  not  the  promise  to  per- 
form, was  to  be  received  in  satisfaction, 
and  does  not  aver  performance,  the  plea 
will  of  course  be  bad.  This  will  explain 
several  recent  English  cases,  which 
might  seem  at  first  sight  to  be  at  vari- 
ance with  what  is  stated  in  the  text. 
Sec  Reeves  v.  Hcarne,  1  M.  &  W.  323  ; 
CoUingburne,  v.  Mantell,  5  M.  &  "W. 
289  ;  Carter  v.  Wormald,  1  Exch.  R. 
81  ;  Gifford  v.  Whittaker,  G  Q.  B.  Rep. 
249  ;  Griffiths  v.  Owen,  13  M.  &  W.  .58  ; 
Harris  v.  Reynolds,  7  Q.  B.  71  ;  Bayley 
i\  Iloman,  3  Bing.  N.  C.  920;  James  v. 
David,  5  T.  R.  140  ;  Allies  v.  Probyn,  5 
Tyrwh.  1079. 

(t)  Com.  Dig.  Accord,  (B.  4)  ;  Good 
V.  Cheesman,  2  B.  &  Ad.  228,  per 
Parke,  J.  ;  Cartwright  v.  Cooke,  3  B. 
&  Ad.  701  ;  Evans  v.  Powis,  1  Exch. 
R.  607  ;  Bayley  v.  Homan,  3  Bing.  N. 
C.  921 ;  Wentworth  v.  Bullen,  9  B.  & 
C.  850.  In  Pope  v.  Tunstall,  2  Pike, 
209,  it  was  held  that  in  debt  on  a 
bond,  a  plea  averring  that  before  suit 
brought,  the  obligees  in  the  bond  had 
taken  a  third  person  into  partnership, 
and  that  the  defendant,  with  two  securi- 
ties, executed  to  the  new  partnership  a 
bond  on  longer  time,  which  was  accept- 
ed and  received  in  full  satisfaction  and 
discharge  of  the  bond  sued  on,  is  good 
in  bar  as  a  plea  of  accord  and  satisfac- 
tion. 

(u)  Thus,  a  plea  that  the  plaintiff 
accepted  an  order  of  the  defendant  on  a 
third  person  for  a  given  sum,  in  satis- 
faction of  the  promises,  is  no  bar  to  an 
action  for  the  original  cause  of  indebt- 
edness, nor  is  a  plea  good  as  an  accord 
and  satisfaction  that  the  plaintiff  agreed 
to  accept  the  note  of  a  third  person, 
which,  on  being  tendered,  he  refused  to 
accept.  Hawlcy  v.  Footc,  19  Wend. 
516. 


196  THE  LAW   OF   CONTRACTS.  '      [PART  II. 

tion.  (v)  If  the  new  promise  is  executory,  and  is  not  bind- 
ing, it  is  no  satisfaction  until  it  be  executed,  and  although  it 
is  to  be  performed  on  a  future  day  certain,  the  promisee  may 
have  his  original  action  before  the  new  promise  becomes 
due.  (lu)  But  if  it  be  a  binding  promise,  for  a  new  consider- 
ation, pcrformable  at  a  future  day  certain,  then  the  original 
right  of  action  is  suspended  until  that  day  comes  ;  if  the  pro- 
mise is  then  duly  performed,  this  right  is  destroyed ;  but  if 
the  promise  is  not  then  duly  performed  this  right  revives, 
and  the  promisee  has  his  election  to  sue  on  the  original  cause 
of  action  or  on  the  new  promise,  unless  by  the  terms  or  the 
legal  effect  of  the  new  contract,  the  new  promise  is  itself  a 
satisfaction  and  an  extinction  of  the  old  one.  (x)  This  may  be 
illustrated  by  the  case  of  one  who  takes  a  promissory  negoti- 
able note,  on  time,  for  money  which  is  due  or  to  become  due. 
This  note  is  conclusive  evidence  of  an  agreement  for  delay 
or  credit,  and  no  action  can  be  maintained  on  the  original 
cause  of  action  until  the  maturity  of  the  note  ;  {p)  if  then 
the  note  is  not  paid,  an  action  may  be  brought  upon  the 
note,  or  on  the  original  cause  of  action,  unless  the  facts  show 
that  the  promisee  took  the  note  in  payment,  or  the  law  im- 
plies it,  as  in  Massachusetts  and  Maine.  (2) 

It  seems  that  a  suit  on  a  written  contract,  as  a  note  of 
hand,  may  be  barred  by  proof  of  the  execution  of  a  parol  con- 
tract, entered  into  concurrently  with  the  written  contract  and 
agreed  to  be  taken  in  satisfaction  of  it.  (a) 

(v)  Com.  Dig.  tit.  Accord,  (B.  4.)  take  it  for  and  on  account  of  and   in 

(w)  lb.         _  renewal   of  the   first   bill.     Before  the 

(x)  If  such  is  the  intent  and  effect  of  second  bill   became   due,  and   without 

the  new  agreement,  the  remedy  on  the  delivering  it  back,  the  plaintiff  brought 

original    cause   is   wholly   gone.      See  an  action  on   the  first  bill  against  the 

supra,  n.  (s).     And  sec  further  Lewis  v.  acceptor.     Held,  that   ho   was   not  en- 

Lystcr,  2  C.  M.  &  E.  704  ;  Kcarslake  titled   to   recover.     And   see  Sayer  v. 

17.  Morgan,  5T.  R.  513;  Richardson  r.  AVaggstaff,    5    Beav.   415;    Simon   v. 

Rickman,  cited  in  Kcarslake  v.  Morgan,  Lloyd,  2  C.  M.  &  R.  187. 

5  T.  R.  513  ;    Griffiths  v.  Owen,  13  M.         (z)  See  ante,  p.  136,  nn.  (o),  (;>). 

6  "W.  03.  (a)   Thus,  where   upon  tiic  indorso- 
(y)  Kcndrick  v.  Lomax,  2  Cr.  &  Jer.  ment  of  a  note  it  was  agreed  by  parol 

405.  In  this  case  after  a  bill  of  ex-  between  the  indorser  and  indorsee,  that 
change  became  due,  and  whilst  it  was  if  the  former  would  execute  to  the  lat- 
in London,  where  it  had  been  sent  to  ter  a  deed  for  a  tract  of  land  the  latter 
be  presented  for  payment,  the  person  would  strike  out  the  indorsement  and 
■who  had  indorsed  it  to  the  plaintiff  release  the  indorser  from  all  liability 
came  to  him  with  another  bill  for  the  thereon,  and  the  indorser  did  afterwards 
same  amount,  and  prevailed  on  him  to  execute  a  deed  for  the  tract  of  land, 


CII,  III.]  DEFENCES.  197 

An  agreement  to  cancel  and  release  mutual  claims,  or  to 
discontinue  mutual  suits,  is  a  mutual  accord  and  satisfac- 
tion;  and  either  party  may  rely  on  it  as  a  bar  against  the 
further  prosecution  of  the  suit  or  claim  by  the  other ;  (b) 
but  to  make  this  effectual  as  to  mutual  suits,  the  mutual 
release  should  be  under  seal. 

Nor  is  it  necessary,  as  we  have  seen,  that  the  accord  and 
satisfaction  should  go  so  far  as  to  extinguish  the  original 
claim.  If  there  be  a  new  agreement,  resting  on  sufficient 
consideration  and  otherwise  valid,  to  suspend  a  previous 
claim  or  cause  of  action,  until  the  doing  of  a  certain  thing, 
or  the  happening  of  a  specified  event,  an  action  cannot  be 
maintained  on  that  claim  in  the  mean  time.  But  such 
agreement  to  suspend  or  delay  will  not  be  inferred  from  the 
mere  giving  of  collateral  security  with  power  to  sell  the  same 
at  a  certain  time  if  the  debt  be  not  previously  paid,  (c) 

To  show  that  the  accord  and  satisfaction  were  simulta- 
neous, and  consisted  of  the  delivery  of  a  certain  thing,  it 
must  be  proved,  not  only  that  the  thing  was  delivered,  but 
that  it  was  received  in  satisfaction,  (d)     This  delivery  need 

which  was  accepted  by  the  indorsee;  of  B.;  and  for  the  satisfaction  of  such 
Held,  that  proof  of  these  facts  was  not  demands,  A.  paid  him  a  sum  of  money- 
evidence  tending  to  establish  a  contract  and  took  his  receipt ;  but  B.  insisted  as 
variant  from  that  contained  in  the  writ-  a  condition  to  such  adjustment  that  A. 
ten  indorsement,  and  was  competent  should  execute  to  him  a  receipt  in  "  full 
to  establish  an  accord  and  satisfaction,  of  all  demands"  on  his  part,  to  which 
Smithcrman  v.  Smith,  3  Dev.  &  Bat.  A.  consented,  and  such  receipt  was  given, 
89.  So  where  P.  and  the  defendant  nothing  being  said  respecting  the  parti- 
agreed  to  purchase  a  vessel  together,  cular  demand  of  A.  Held,  notwith- 
and  the  defendant,  having  received  $190  standing,  that  it  was  a  good  accord  and 
of  P.,  for  which  he  gave  his  note  on  de-  satisfaction  of  A's  cause  of  action  against 
mand,  purchased  the  vessel  in  his  own  B.  So  in  Fosters.  Trull,  12  Johns.  456, 
name,  and  afterwards  signed  a  writing  it  was  held,  that  an  agreement  by  two, 
which  set  forth  that  a  portion  of  the  having  each  an  action  for  false  impri- 
vessel  was  to  belong  to  P.  upon  his  pay-  sonment  pending  against  the  other,  to 
ing  therefor,  and  acknowledged  the  re-  discontinue  their  respective  actions,  and 
ceipt  of  $190  towards  such  payment,  an  actual  discontinuance  accordingly, 
which  was  admitted  to  be  the  same  are  a  good  accord  and  satisfaction, 
money  for  which  the  note  was  given,  (c)  Ernes  v.  Widdowson,  4  C.  &  P. 
and  such  writing  was  accepted  by  P.;  151. 

it  was  held   that  this   was   an    accord  (d)  Maze   v.  Miller,   I   Wash.   C-   C. 

and  satisfaction  of  the  note,  although  it  328  ;  Sinard  v.  Patterson,  3  Blackf.  354  ; 

was  not  cancelled.    Peck  v.  Davis,  19  Hall  v.  Flocton,  4  Eng.  Law  &  Eq.  R. 

Pick.  490.  185;  State  Bank  v.  Littlejohn,  1  Dev. 

(6)  Thus   in  Vedder  v.   Vedder,    1  &  Batt.  5G5.    And  it  is  entirely  a  ques- 

Denio,  257,  A.  and  B.  having  mutual  tion   for   the  jury,  whether   there  was 

causesof  action  in  tor<  against  each  other  an  acceptance.     Every  receipt  is  not  an 

had  an  interview  to  adjust  the  demands  acceptance.     To  constitute  an  accept- 

17* 


198 


THE   LAW   OF   CONTRACTS. 


[part  II. 


not  have  been  voluntary,  or  intended  by  way  of  satisfaction. 
But  if  the  property  of  the  debtor  come  lawfully  into  posses- 
sion of  the  creditor,  and  they  then  agree  that  it  may  be  re- 
tained by  him  and  shall  be  in  satisfaction  of  the  debt,  this 
would  be  regarded  as  a  good  accord  and  satisfaction,  (e) 

The  accord  and  satisfaction  must  be  advantageous  to  the 
creditor.  (/)     He   must   receive   from  it  a  distinct  benefit, 


ance  there  must  be  an  act  of  the  will. 
Hardman  v.  Bellhousc,  9  M.  &  W.  600. 
Brenner  v.  Herr,  8  Penn.  St.  106.  So 
whether  a  note  or  bond  is  accepted  in 
satisfaction  of  an  original  claim,  or  only 
as  collateral  security,  is  for  the  jury. 
Stone  V.  Miller,  16  Penn.  St.  450. 

(e)  Thus  in  Jones  v.  Sawkins,  5  C.B. 
142,  in  an  action  of  debt  for  use  and  oc- 
cupation of  certain  rooms  and  apart- 
ments of  the  plaintiff,  the  defendant 
pleaded; — 1st.  That  the  plaintiff  dur- 
ing the  demise,  and  before  the  com- 
mencement of  the  suit,  took  the  defend- 
ant's goods  as  a  distress,  they  being  of 
sufficient  value  to  satify  the  rent  and 
costs  of  the  distress,  &c. ;  that  the  plain- 
tiff never  sold  the  goods  but  retained 
them  until  just  before  the  commence- 
ment of  the  suit,  when  he,  with  the  as- 
sent of  the  defendant  received  and  ac- 
cepted them,  and  still  retained  them  in 
satisfaction,  &c.  2d.  That  after  the 
accruing  of  the  causes  of  action  and 
before  the  commencement  of  the  suit, 
the  plaintiff  wrongfully  seized  the  de- 
fendant's goods,  being  of  value  more 
than  sufficient  to  satisfy  the  causes  of 
action,  and  retained  them  for  an  un- 
reasonable time,  to  wit,  &c.,  and  con- 
verted them ;  that  it  was  before  the 
commencement  of  the  suit  agreed  be- 
tween the  plaintiff  and  defendant  that, 
for  the  termination  of  disputes  between 
them  concerning  the  causes  of  action  in 
the  declaration,  and  claims  made  by  the 
defendant  in  respect  of  the  seizure  and 
conversion,  such  demands  and  rights  of 
action  should  be  mutually  relinquished, 
and  that  the  plaintiff  should  retain  the 
goods  as  a  final  settlement  in  full  satis- 
faction and  discharge  of  the  said  causes 
of  action  ;  and  that  the  plaintiff  accept- 
ed and  received,  and  still  retained  the 
said  goods  in  sucli  full  satisfaction  and 
discharge.  3d.  That  the  plaintiff  wrong- 
fully seized  the  defendant's  goods  to  the 
value  of  all  the  moneys  in  the  declara- 
tion mentioned,  and  detained  the  goods 


for  an  unreasonable  time,  and  convert- 
ed them,  and  wrongfully  disturbed  the 
defendant  in  the  peaceable  possession 
of  the  rooms ;  that  the  plaintiff  was 
desirous  of  regaining  possession  of  the 
rooms ;  that  after  the  accruing  of  the 
causes  of  action,  and  before  the  com- 
mencement of  the  suit,  it  was  agreed 
between  the  plaintiff'  and  the  defendant 
that,  to  put  an  end  to  disputes  in  re- 
spect of  the  causes  of  action  in  that  plea 
mentioned,  and  other  alleged  causes  of 
action  on  the  part  of  the  defendant,  they 
should  mutually  relinquish  their  claims, 
that  the  plaintiff  should  retain  the  goods 
in  full  satisfaction  and  discharge  of  his 
claim,  and  that  the  defendant  should 
relinquish  her  right  to,  and  give  up  pos- 
session of  the  rooms,  and  should  be  dis- 
charged by  plaintiff  from  all  claims, 
and  that  the  defendant  accordingly  re- 
linquished her  claims  to,  and  gave  up 
possession  during  the  tenancy,  and  the 
plaintiff  resumed,  and  still  retained  pos- 
session of  the  rooms,  and  retained  the 
goods  so  seized,  in  satisfaction  and  dis- 
charge of  the  causes  of  action  : — Held, 
that  the  pleas  were  good  pleas  of  accord 
and  satisfaction.  Held,  also,  that  the 
replications, — which  in  substance  alleg- 
ed that  the  plaintiff  did  not  seize  or  de- 
tain any  goods  of  the  defendant  of  suf- 
ficient value  to  satisfy  the  rents  and 
costs,  or,  of  value  sufficient  for  a  full 
satisfaction  and  discharge  of  the  causes 
of  action, — were  bad,  as  raising  an  im- 
material issue. 

(f)  Thus,  it  is  settled  that  a  mere 
receipt  by  a  creditor  of  part  of  his  debt 
then  due,  is  not  a  good  defence  by  way 
of  accord  and  satisfaction,  to  an  action 
for  the  remainder,  although  the  creditor 
agreed  to  receive  it  in  full  satisfaction. 
See  ante,  pp.  130, 131,  and  notes.  And 
sec  further,  Warren  r.  Skinner,  20  Conn. 
559,  an  excellent  case ;  Daniels  v.  Hatch, 
1  New  Jersey,  391  ;  Adams  t;.  Tapling, 
4  Mod.  88;  Worthitigton  v.  Wigley 
3  Bing.  N.  C.  454  ;    Smith  v.  Bartholo 


OH.  III.] 


DEFENCES. 


199 


which  otherwise  he  would  not  have  had.  (g-)  Thus,  to  an 
action  for  wrongfully  taking  cattle  it  is  no  plea  that  it  was 
agreed  that  plaintiff  might  have  them  again  ;  for  this  the  law 
would  have  given  him  ;  and  the  return  of  the  cattle  is  not  a 
satisfaction  for  the  injury  caused  by  the  detention  of  them,  [h) 
But  although  it  has  been  held  that  the  thing  given  in  satisfac- 
tion must  have  a  distinct  value  at  law,  and  therefore  the 
release  of  equities  of  redemption  could  not  be  a  satisfaction 
for  want  of  such  value,  (f)  it  cannot  be  doubted,  that  if  the 
satisfaction  be  actual,  and  have  a  real  value  in  fact,  either  at 
law  or  in  equity,  it  would  be  held  sufficient. 

We  have  seen  that  a  promise,  without  execution,  is  no 
satisfaction,  unless  it  has  this  effect  by  express  agreement. 
And  on  the  same  principle,  if  the  promise  be  executed  lite- 
rally, or  in  form,  but  is  rendered  inoperative  or  worthless  to 
the  creditor  by  the  debtor's  act  or  omission,  this  has  no  effect 
as  an  accord  and  satisfaction,  (j) 


mew,  1  Met.  276  ;  Mitchell  v.  Cragg, 
10  M.  &  W.  367  ;  Greenwood  v.  Lid- 
better,  12  Price,  183  ;  Hinckley  i\  Arey, 
27  Maine,  362;  Hardey  v.  Coe,  5  Gill, 
189;  White  y.  Jordan,  27  Maine,  370; 
Eve  V.  Moseley,  2  Strobb.  203.  But  this 
rule  applies  only  when  the  claim  thus  set- 
tled is  a  liquidated  and  undisputed  one. 
Longridge  v.  Dorville,  5  B.  &  Aid.  117; 
Wilkinson  v.  Byers,  1  Ad.  &  El  106; 
Reynolds  v.  Pinhowe,  Cro.  Eliz.  429  ; 
Atlee  V.  Backhouse,  3  M.  &  W.  651  ; 
McDaniels  v.  Lapham,  21  Verm.  223  ; 
Stockton  V.  Frey,  4  Gill,  406  ;  Palmer- 
ton  V.  Huxford,  4  Denio,  166;  Tuttlo 
V.  Tuttle,  12  Met.  551.  And  if  the 
debtor  give  his  negotiable  note  for  part 
of  an  undisputed  debt,  and  this  be  ac- 
cepted in  full  satisfaction,  the  right  to 
sue  for  the  balance  is  gone.  See  ante, 
p.  131,  n.  (.r).  Or  the  note  of  a  third 
person.  See  a«te,  p.  131,  n.  (y)  ;  Booth 
V.  Smith,  3  Wend.  66.  In  Bruce  v. 
Bruce,  4  Dana,  530,  the  defendant  plead- 
ed that  the  plaintiff  had  agreed  to  ac- 
cept the  promise  of  a  third  person,  in 
full  satisfaction  of  the  note  sued  on. 
The  only  evidence  in  support  of  the 
plea  was  an  indorsement  signed  by  the 
third  party,  and  in  these  words  :  "  I  am 
to  pay  the  within  note;"  and  a  credit, 
of  the  same  date,  still  legilile,  though 
lines  had  been  drawn  through  it,  for  a 


sum  paid  by  the  third  party.  Held, 
that  this  was  no  evidence  of  an  accord 
and  satisfaction  of  the  note  which  re- 
mained in  the  plaintiff's  possession.  So 
if  the  creditor  derives  any  benefit  from 
the  part  payment,  to  which  he  was  not 
entitled,  and  he  accepts  this  additional 
benefit,  together  with  the  part  payment, 
as  a  full  satisfaction,  this  is  a  good  dis- 
charge of  his  whole  claim.  Douglass  v. 
White,  3  Barb.  Ch.  R.  621 ;  Hinckley 
V.  Arey,  27  Maine,  362.  As  if  part  is 
paid  and  received  in  full  satisfiiction 
before  the  whole  is  due.  Brook  v. 
White,  2  Mete.  283  ;  Goodnow  v.  Smith, 
18  Pick.  414  ;  Smith  v.  Brown,  3  Hawks, 
580.  And  if  the  creditor  receives  any 
specific  property,  either  from  the  debtor 
or  a  third  person,  in  full  satisfaction, 
this  is  a  good  discharge  whatever  be  the 
value  of  the  thing  thus  received,  there 
being  no  fraud.  Reed  v.  Bartlett,  19 
Pick.  273  ;  Blinn  v.  Chester,  5  Day,  360. 
And  see  ante,  p.  131,  n.  {x.) 

{(j)  See  preceding  note. 

('//)  Keelcr  v.  Neal,  2  Watts,  424.  A 
plea  of  accord,  &c.,  must  show  that  the 
plaintiff"  received  something  valuable. 
Davis  V.  Noaks,  3  J.  J.  Marsh.  497  : 
Logan  V.  Austin,  1  Stewart,  476. 

(i)  Preston  i'.  Christmas,  2  Wils.  86. 

(j)  Thus  in  Turner  v.  Browne,  3  C. 
B.  157,  in  debt  for  money  had  and  re- 


200  THE  LAW  OF  CONTRACTS.  [PART  II. 

If  the  accord  and  satisfaction  be  made  by  a  third  party, 
and  is  accepted  as  satisfaction,  it  would  seem  to  be  sufficient, 
if  the  actual  debtor  consent  to  look  upon  it  as  such,  {k)  At 
least  this  must  be  the  case  where  the  debtor  and  the  stranger 
are  principal  and  agent,  or  the  transaction  is  such  that  the 
debtor  may  make  it  the  act  of  the  stranger  as  his  agent,  by 
his  subsequent  adoption  and  ratification. 

An  accord  and  satisfaction  made  before  breach  of  cove- 
nant or  contract,  is  not  a  bar  to  an  action  for  a  subsequent 
breach.  {I) 


SECTION  VI. 
OP  ARBITRAMENT  AND   AWARD. 

Somewhat  analogous  to  the  defence  of  accord  and  satis- 
faction, is  that  of  arbitrament  and  award.  By  the  first,  the 
parties  have  agreed  as  to  what  shall  be  done  by  one  to  satis- 
fy the  claim  of  the  other.  By  the  second  they  have  agreed 
to  submit  this  question  to  third  persons,  (m)     The  first  essen- 

ceived,  &c.,  the»defendant  pleaded,  that  sale  of  goods  is  given  in  satisfaction  of 

after    the   accruing   of    the   debts   and  a  bond  debt,  and  it  is  afterwards  dis- 

causes  of  action,  the  defendant  cxccut-  covered  that  the  obligor  had  previously 

ed  a  deed,  securing   to   the  plaintiff  a  committed  an  act  of  bankruptcy,   the 

certain  annuity,  and  that   the  plaintiff  obligee  may  abandon  the  bill   of  sale 

then  accepted  and  received  the  same  of  and  sue  out  a  commission  against  the 

and  from  the  defendant  in  full  satisfac-  obligor,  and  a  co-obligor  cannot  plead 

tion  and  discharge  of  all  the  said  several  the  bill  of  sale  as  an  accord  and  satis- 

debts  and  causes  of  action.     The  plain-  fivction,  in  an  action  against  him  on  the 

tiff  replied  that  no  memorial  of  the  an-  bond. 

nuity  deed  was  enrolled  pursuant  to  the  (k)  Booth  v.  Smith,  3  Wend.  66  ;  Web- 
statute  ;  that  the  annuity  being  in  arrear,  ster  y.  Wyser,  1  Stew.  184. 
the  plaintiff  i)rought  an  action  to  recover  {/)  And  it  is  immaterial  whether  the 
the  amount  of  the  arrears,  that  the  de-  covenant  is  to  pay  at  a  time  certain,  or 
fendant  pleaded  in  bar  of  that  action  upon  a  contingency.  Ilcaley  i'.  Spence, 
the  non-enrolment  of  the  memorial,  and  20  Eng.  Law  &  Eq.  476;  Mayor  or 
that  thereupon  the  plaintiff  elected  and  Berwick,  v.  Oswald,  16  Eng.  Law  & 
agreed  that  the  indenture  should  be  null  Eq.  236;  Snow  v.  Franklin,  1  Lutw. 
and  void,  as  pleaded  by  the  defendant,  358;  Alden  v.  Blague,  Cro.  Jac.  99  ;• 
and  discontinued  the  action  : — Held,  a  Neal  v.  Sheaffield,  id.  254 ;  Kaye  v. 
good  answer  to  the  plea,  inasmuch  as  it  Waghorne,  1  Taunt.  428  ;  Smith  v. 
showed  that  the  accord  and  satisfaction  Brown,  3  Hawks,  580 ;  Harper  v.  Hamp- 
thercby  set  up  had  been  rendered  nuga-  ton,  1  Harris  &  J.  673. 
tory  and  unavailing  by  the  act  of  the  (;«)  The  submission  is,  in  fact,  a 
defendant  himself  Upon  the  same  prin-  contract;  a  contract  to  refer  the  subject 
ciple  it  was  held  in  Hall  v.  Smallwood,  in  dis})Ute  to  otliers,  and  to  be  bound  by 
Peake's  Add.  Cas.  13,  that  if  a  bill  of  their  award.    And  the  submission  itself 


en.  III.] 


DEFENCES. 


201 


tial  therefore  of  an  award,  without  which  it  has  no  force 
whatever,  is,  that  it  be  conformable  to  the  terms  of  the  sub- 
mission, (n)  The  authority  given  to  the  arbitrators  should 
not  be  exceeded,  and  the  precise  question  submitted  to  them, 
and  neither  more  nor  less,  should  be  answered.  Neither  can 
the  award  affect  strangers ;  and  if  one  part  of  it  is  that  a 
stranger  shall  do  some  act,  it  is  not  only  of  no  force  as  to  the 
stranger,  but  of  no  force  as  to  the  parties,  if  this  unauthorized 
part  of  the  award  cannot  be  severed  from  the  rest,  (o)  Nor 
can  it  require  that  one  of  the  parties  should  make  a  payment 
or  do  any  similar  act  to  a  stranger.  (;;)  But  if  the  stranger 
is  mentioned  in  an  award  only  as  agent  of  one  of  the  parties, 
which  he  actually  is,  or  as  trustee,  or  as  in  any  way  paying 
for,  or  receiving  for  one  of  the  parties,  this  does  not  invali- 
date the  award,  (q)     And  in  favor  of  awards,  it  has  been 


implies  an  agreement  to  abide  the  re- 
sult, although  no  such  agreement  be 
expressed.  Stewart  v.  Cass,  16  Ver- 
mont, 663  ;  Valentine  v.  Valentine,  2 
Barb.  Ch.  430.  And  a  submission  is 
valid  and  binding,  although  there  is  no 
agreement  that  judgment  may  be  enter- 
ed on  the  award.  Howard  v.  Sexton, 
4  Comst.  157. 

(n)  1  Rol.  Abr.  tit.  Arbitrament,  (E) ; 
Hide  V.  Petit,  1  Ch.  Cas.  185;  So- 
lomons V.  McKinstry,  13  Johns.  27. 
Neither  arbitrators  nor  courts  can  sub- 
stitute another  agreement  for  the  one 
actually  made  by  the  parties.  Howard 
V.  Edgeli,  17  Vermont,  9. 

(o)  1  Rol.  Abr.  tit.  Arbitrament,  (E.) 
An  award  directing  a  qui  lam  action 
to  cease,  is  therefore  bad.  Philips  v. 
Knightley,  Strange,  903.  So  an  award 
that  a  stranger  to  the  submission  should 
give  bond  as  a  security,  for  the  perform- 
ance of  the  award  ;  or  that  one  party's 
wife  and  son  should  join  in  a  conveyance, 
is  invalid.  Com.  Dig.  Arbit.  (V..  1); 
Pits  V.  Wordal,  Godb.  165  ;  Keilwey, 
43  a,  pi.  10.  So,  that  an  action  by  one 
party  and  his  icife,  against  the  other_ 
party  sliould  be  discontinued.  Com. 
Dig.  Arbit.  (D.  4.) ;  that  the  servant  of 
one  party  should  pay  a  certain  sum. 
Dudley  v.  Mallery,  cited  in  Norwich  v. 
Norwich,  3  Leonard,  62.  Or  an  award 
that  one  party  should  become  bound  with 
sureties  for  the  performance  of  any  par- 
ticular act.    Oldfield  v.  Wilmer,  1  Leon. 


140;  Coke  v.  Whorwood,  2  Lev.  6; 
that  the  party  and  one  ivho  had  become 
surety  in  the  submission  bond,  should 
pay  tlie  sum  awarded.  Richards  v. 
Brockenbrough,  1  Rand,  449.  And  an 
award  against  one  company  will  not 
bind  another  company,  consisting  in 
part  of  the  same  persons.  Kratzer  v. 
Lyon,  5  Penn.  St.  274.  Strangers  to 
the  submission  maj'  in  some  instances 
be  bound  by  silently  acquiescing  in  an 
award.  Govett  v.  Richmond,  7  Simons, 
1.  And  see  Humphreys  v.  Gardner,  11 
Johns.  61 ;  Downs  v.  Cooper,  2  Q.  B. 
256.  An  award  that  one  party  shall 
cause  a  stranger  to  do  a  certain  act,  as 
to  deliver  possession  of  land,  is  void. 
Martin  v.  Williams,  13  Johns.  264.  Or 
that  one  party  should  erect  a  stile  and 
bridge  on  the  premises  of  a  stranger. 
Turner  v.  Swainson,  1  M.  &  W.  572. 
But  an  award  directing  one  party  and 
others  to  convey  certain  premises  to  the 
other,  or  that  'he  alone  should  pay  a 
certain  sum  in  money  is  not  invalid  as 
to  the  last  part.  Thornton  v.  Carson, 
7  Cranch,  596. 

(p)  Bretton  i'.  Prat,  Cro.  Eliz.  758  ; 
1  Rol.  Abr.  tit.  Arbitrament,  (B),  pi.  7. 
Adams  v.  Statham,  2  Lev.  235. 

((j)  Com.  Dig.  Arb.  (E.  7.)  ;  Dudley 
V.  Mallery,  cited  in  Norwicli  v.  Norwich, 
3  Leon.  62 ;  Bird  v.  Bird,  Salk.  74  ; 
Bedam  i'.  Clerkson,  Ld.  Raym.  123; 
Snook  I'.  HcUyer,  2  Chitty,  43  ;  Gale  ». 
Mottram,  W.'Kel.  127;  Lynch  v.  Cle- 


202 


THE  LAW   OF    CONTRACTS. 


[part  II. 


said  that  this  will  be  supposed,  where  the  contrary  is  not  in- 
dicated. (;•) 

If  the  award  embrace  matters  not  included  in  the  submis- 
sion it  is  fatal,  (s)  If,  however,  the  portion  of  the  award 
which  exceeds  the  submission  can  be  separated  from  the  rest 
without  affecting  the  merits  of  the  award,  it  may  be  rejected 
as  surplusage,  and  the  rest  will  stand ;  otherwise  the  whole 
is  void,  (t)  If  the  submission  specify  the  particulars  to  which 
it  refers,  or  if,  after  general  words  it  make  specific  exceptions, 
its  words  must  be  strictly  foUow^ed.  (u)  But  if  these  words 
are  very  general,  they  will  be  construed  liberally,  but  yet 


mencc,  1  Lutw.  571  ;  Macon  v.  Crump, 

1  Call,  500 ;  Inh.  of  Boston  v.  Brazier, 
11  Mass.  447  ;  Beckett  r.  Taylor,  1  Mod. 
9,  2  Keb.  546  ;  Bradsey  v.  Clyston,  Cro. 
Car.  541. 

(r)  Bird  v.  Bird,  1  Salk.  74.  But  see 
Wood  V.  Adcock,  9  Eng.  Law  &  Eq. 
R.  524,  that  the  onus  of  showing  that  a 
payment  to  a  third  person  is  for  the 
benefit  of  a  party  to  the  submission,  lies 
on  the  party  seeking  to  enforce  the 
award.  And  see  In  Ee  Mackay,  2  Ad. 
&  Ell.  356  ;  Snook  v.  Hellyer,  2  Chiity, 
43. 

(s)  Brown  v.  Savage,  Cas.  tem.  Finch, 
185  ;  Warren  i\  Green,  id.  141  ;  Lynch 
V.  Clemcncc,  1  Lutw.  571  ;  Waters  v. 
Bridges,  Cro.  Jac.  639  ;  Hill  v.  Thorn, 

2  Mod.  309 ;  Doyley  v.  Burton,  Ld. 
Raym.  533  ;  Bonner  v.  Liddell,  1 
Brod.  &  Bing.  80;  Culver  v.  Ashley, 
17  Pick.  98.  In  this  lust  case  all  de- 
mands between  the  parties  were  submit- 
ted to  arl)itration,  and  the  arbitrators 
were  authorized,  in  case  they  sliould 
find  the  plaintiff  indebted  to  the  defend- 
ant, to  estimate  the  value  of  certain 
chattels  of  the  plaintiff,  and  the  defend- 
ant was  to  take  them  in  i)art  payment. 
The  arbitrators  found  the  plaintiff  in- 
debted to  a  less  amount  than  the  value 
of  the  chattels,  but,  instead  of  appraising 
so  much  only  of  tiie  chattels  as  would 
pay  the  debt,  they  awarded  that  the  de- 
fendant sliould  take  them  and  pay  the 
plaintiff  in  money  the  excess  of  their 
value  beyond  the  amount  of  the  del)t. 
Ilcld,  that  the  arl)itrators  had  exceeded 
their  authority  and  that  the  award  was 
invalid.  See  also  Shearer  v.  Ilandj', 
22  Pick.  417  ;  In  Re  Williams,  4  Dcnio, 
194 ;  Thrasher  v.  Havnes,  2  N.  11. 
R.  429  ;  Pratt  v.  Hackett,  G  Johns.  14. 


(t)  Taylor  v.  Nicolson,  1  Hen.  & 
Mun.  67  ;  Richards  v.  Brockenbrough, 
1  Rand.  449 ;  McBride  v.  Hagan,  1 
Wend.  326 ;  Clement  v.  Durgin,  1 
Grcenl.  300;  Philbrick  v.  Preble.  18 
Maine,  255  ;  Banks  v.  Adams,  23  Maine, 
259  ;  Lyle  v.  Rodgers,  5  Wheat.  394  ; 
Walker  v.  Merrill,  13  Maine,  173  ;  Gor- 
don V.  Tucker,  6  Greenl.  247  ;  Pope 
V.  Brett,  2  Saund.  293,  and  note  1  ; 
Addison  v.  Gray,  2  Wils.  293  ;  Crom- 
well V.  O  wings,  6  H.  &  J.  10  ;  Martin  v. 
Williams,  13  Johns.  264 ;  Cox  v.  Jag- 
ger,  2  Cow.  '638 ;  Gomez  v.  Garr,  6 
Wend.  583,  9  Wend.  649;  Brown  v. 
Warnock,  5  Dana,  492.  For  it  is  well 
settled  that  an  award  may  be  good  in 
part,  and  bad  in  part.  Rixford  v.  Nye, 
20  Verm.  132;  Fox  j;.  Smith,  2  Wilson, 
267  ;  Addison  v.  Gray,  id.  293.  The 
objection  that  the  award  does  not  fol- 
low the  submission  is  one  that  may  be 
waived  by  the  parties,  and  their  promise 
to  abide  by  it,  or  other  acquiscence,  may 
render  it  valid.  IMcCullough  v.  ISIycrs, 
Hardin,  197  ;  McDaniell  v.  Bell,  3 
Hayes,  258  ;  Culver  v.  Ashley,  19  Pick. 
300 ;  Frothingham  v.  Haley,  3  Mass. 
70;  Cairncs  i'.  Bleeker,  12  j'olins.  300, 
And  the  party  in  whose  favor  an  award 
is  made,  cannot  object  that  a  certain 
particular  found  for  him  was  not  autho- 
rized by  the  submission.  Galvin  v. 
Thompson,  13  Maine,  367.  A  fortiori 
third  persons  can  not  impeach  an  award 
because  it  does  not  follow  the  submis- 
sion, if  the  parties  themselves  do  not 
object.  Penniman  v.  Patchin,  6  Verra. 
325. 

(m)   Scott  V.  Barnes,   7   Penn.    St. 
134. 


en.  III.] 


DEFENCES. 


20^ 


without  extending  them  beyond  their  fair  meaning,  (v)  On 
the  other  hand,  all  questions  submitted  must  be  decided, 
unless  the  submission  provides  otherwise ;  (w)  and  either 
party  may  object  to  an  award  that  it  omits  the  decision  of 
some  question  submitted  ;  but  the  objection  is  invalid  if  it 
be  shown  that  the  party  objecting  himself  withheld  that 
question  from  the  arbitrators,  (x)  Nor  is  it  necessary  that 
the  award  embrace  all  the  topics  which  might  be  considered 
within  the  terms  of  a  general  submission.  It  is  enough  if  it 
pass  upon  those  questions  brought  before  the  arbitrators,  and 
they  are  so  far  distinct  and  independent  that  the  omission  of 
others  leaves  no  uncertainty  in  the  award,  (y)  If  the  award 
does  not  embrace  all  of  the  matters  within  the  submission 


(v)  Munro  v.  Alaire.  2  Caincs,  320. 
A  submission  of  all  demands  extends 
to  real,  as  well  as  personal  property. 
Bycrs  v.  Van  Deusen,  5  Wend.  268. 
A  submission  of  "  all  business  of  what- 
ever kind  in  dispute  between  the  par- 
ties," includes  a  prosecution  for  an  as- 
sault and  battery,  pending.  Noble  v. 
Peebles,  13  S.  &  R.  18.  A  submission 
of  "all  causes  of  action,"  includes  a 
charge  of  fraud  in  a  sale  of  certain  pro- 
perty. De  Long  v.  Stanton,  9  Johns. 
38.  But  a  submission  of  "  all  unsettled 
accounts  "  does  not  authorize  an  award 
dividing  all  the  personal  property  owned 
in  common  by  the  two  parties,  and  that 
each  should  pay  one  half  the  debts  con- 
tracted by  either,  and  that  one  should 
pay  the  other  $250.  Shearer  v.  Handy, 
22  Pick.  417.  Under  a  submission  of 
all  demands,  prospective  damages  on 
a  bond  of  indemnity  then  outstand- 
ing may  be  taken  into  consideration. 
Cheshire  Bank  v.  Eobinsou,  2  N.  H. 
R.  126. 

(iv)  Browne  v.  Meverell,  Dyer,  216,  b. ; 
Cockson  V.  Ogle,  1  Lutw.  550  ;  Freeman 
V.  Baspoule,  2  Brownl.  309 ;  Bean ;;.  New- 
bury, 1  Lev.  139;  Winter  v.  Munton, 
2  Moore,  729 ;  Richards  v.  Drinker,  1 
Halst.  307  ;  Jackson  v.  Ambler,  14 
Johns.  96  ;  Wright  v.  Wright,  5  Cow. 
197.  If,  however,  after  the  making  of 
the  submission,  some  portion  of  the 
claims  embraced  in  it  be  withdrawn 
from  the  consideration  of  the  arbitra- 
tors, by  an   agreement  of  the  parties, 


and  an  award  be  published,  with  their 
assent,  embracing  only  the  remaining 
claims,  such  an  award  will  be  valid. 
Varney  v.  Brewster,  14  N.  H.  49.  If  the 
award  does  not,  in  terms,  decide  all 
the  matters  submitted,  yet  if  the  thing 
awarded  necessarily  includes  all  other 
things  and  matters  mentioned  in  the 
submission,  this  is  sufficient.  Smith  r. 
Demarest,  3  Hiilsled,  195.  The  omis- 
sion of  some  items  must  clearly  ap- 
pear. McKinstry  r.  Solomons,  2  Johns. 
57,  13  id.  27  ;  Kleine  v.  Catara,  2  Gall. 
61  ;  Karthaus  i'.  Ferrer,  1  Pet.  222. 
See  further.  Winter  r.  White,  3  J.  B. 
Moore,  674,  1  Bood  &  Bing.  350  ; 
Athelstan  v.  Moon,  Com.  Rep.  547 ; 
Harris  v.  Wilson,  1  Wend.  511  ;  Kil- 
burn  V.  Kilburn,  13  Meeson  &  Welsh. 
671. 

(x)  Page  V.  Foster,  7  N.  H.  R.  392. 
And  see  Smith  v.  Johnson,  15  East. 
213;  Metcalf  t'.  Ives,  Cas.  tem.  Hard. 
389.  Under  a  sealed  submission,  the 
parties  cannot,  at  the  hearing,  by  a 
parol  agreement,  withdraw  one  item 
embraced  in  the  submission.  Howard 
V.  Cooper,  1  Hill.  44. 

(y)  McNear  v.  Bailey,  18  Maine,  251  ; 
PinkertOH  v.  Caslon,  2  B.  &  Aid.  704; 
Garland  v.  Noble,  1  J.  B.  Moore,  187. 
Arbitrators  are  presumed  to  have  acted 
upon  all  matters  submitted,  until  the 
contrary  is  shown.  Parsons  v.  Aldrich, 
6  New  Hampsh.  264;  Emery  v.  Hitch- 
cock, 12  Wend.  157.  But  sec  King  i;. 
Bowen,  8  M.  &  W.  625. 


204 


THE   LAW   OF   CONTRACTS. 


[part  II. 


which  were  brouo;ht  to  the  notice  of  the  arbitrators  it  is  alto- 
gether  void,  (c) 

In  the  next  place,  an  award  must  be  certain ;  that  is,  it 
must  be  so  expressed  that  no  reasonable  doubt  can  be  enter- 
tained as  to  the  meaning  of  the  arbitrators,  the  effect  of  the 
award,  or  the  rights  and  duties  of  the  parties  under  it.  {a) 


(z)  In  Houston  i-.  Pollard,  9  Met. 
164,  by  an  agreement  of  submission  to 
arbitration,  the  arbitrators  were  to  de- 
termine between  A.  and  B.,  1st,  whether 

A.  had  finished  a  certain  dwelling-house 
according  to  his  contract  with  B.,  and 
what,  if  any  thing,  remained  to  be  done 
upon  the  house  by  A.,  and  how  much, 
if  any  thing,  remained  to  be  paid   by 

B.  to  A.,  and  what  damage,  if  any, 
should  be  deducted  and  allowed  to  B. 
for  the  failure  of  A.  to  perform  the 
agreement  to  build  the  house ;  2d,  to 
determine  and  decide  what  amount,  if 
any,  remained  to  be  advanced  by  B.  to 
A.,  and  what  remained  to  be  done,  if 
any  thing,  by  A.,  upon  a  certain  other 
dwelling-house,  to  finish  it,  conformably 
to  another  contract  between  him  and 
B. ;  and  the  parties  agreed  to  do  and 
perform  to  each  other  whatever  might 
be  ordered  by  the  arbitrators  to  be  done 
by  them  respectively.  The  arbitrators 
awarded  that  B.  should  pay  a  certain 
sum  to  A.  in  fulfilment  of  the  contract 
for  building  the  first-mentioned  house, 
and  that  another  certain  sum  remained 
to  be  advanced  by  B.  to  A.  in  fulfilment 
of  the  contract  for  building  the  other 
house.  i/t'W,  that  the  arbitrators  had 
not  decided  all  the  matters  submitted  to 
them,  and  that  their  award  was  therefore 
bad.  See  also  In  Ke  Rider  and  Fisher, 
3  Bing.  N.  C.  874,  where,  in  a  dispute 
upon  a  building  contract,  arbitrators 
were  to  award  on  alleged  defect.^  in  the 
building,  on  claims  for  extra  work,  and 
deductions  for  omissions,  and  to  ascer- 
tain what  balance,  if  any,  might  be  due 
to  the  builder.  An  award,  ordering  a 
gross  sum  to  be  ))aid  to  the  builder, 
without  any  decision  on  the  alleged  de- 
fects, was  lield  ill. 

(a)  Hawkins  v.  Colclough,  1  Burr. 
275 ;  Schuyler  v.  Van  Dcr  Veer,  2 
Caincs,  23.5,  an  excellent  case  on  this 
subject.  And  it  is  not  sufficient  mere- 
ly that  the  parties  and  the  arbitrators 
could  understand  it.     The  award  should 


be  in  terms  so  clear  and  intelligible 
that  every  one  who  reads  it  may  com- 
prehend it.  Gratz  v.  Gratz,  4  Rawle, 
411.  A  few  instances  of  a  fatal  uncer- 
tainty in  awards  are  given  below.  Thus, 
an  award  directing  one  party  to  give 
a  bond,  without  saying  in  what  sura. 
Samon's  case,  5  Rep.  77.  And  see  Bacon 
V.  Dubarry,  1  Ld.  Raym,  246.  To  give 
"  good  security "  for  a  certain  sum, 
without  saying  what  security.  Jackson 
V.  De  Long,  9  Johns.  43 ;  Thinne  v.  Rig- 
by,  Cro.  Jac.  314;  Tipping  v.  Smith, 
2  Strange,  1024  ;  Duport  v.  Wildgoose, 

2  Bulstr.  260  ;  Barnet  v.  Gilson,  3  Serg. 
&,  R.  340.  But  see  Peck  v.  Wakely,  2 
McCord,  279,  where  an  award  to  give 
"  sufficient  indemnity "  was  held  not 
uncertain,  these  words  being  construed 
to  mean,  the  defendant's  own  personal 
obligation.  So  to  convey  the  right  of 
one  party  to  said  farm,  when  no  farm  had 
been  mentioned.     Brown  v.  Hankerson, 

3  Cowen,  70  ;  or  that  one  party  should 
pay  £5,  and  other  small  things.  Rudston 
V.  Yates,  March,  144  ;  or  much  as  should 
be  due  in  conscience.  Watson  v.  Wat- 
son, Styles,  28  ;  or  as  much  as  certain 
land  should  be  worth.  Titus  v.  Perkins, 
Skinner,  248  ;  or  as  much  as  a  quarter 
of  malt  should  be  worth.  Hurst  v. 
Bumbridge,  1  Rol.  Abr.  tit.  Arb.  (Q.) 
pi.  7  ;  that  one  party  should  give  up  a 
certain  obligation,  dated  of  a  given  date, 
but  not  otherwise  identifying  it.  Shep- 
pard  V.  Stites,  2  Halst.  90.  And  see 
McKeen  v.  Allen,  2  Harrison,  506  ; 
Bedam  v.  Clerkson,  Ld.  Raym.  124.  Or 
to  give  up  "  several  books."  Cockson 
V.  Ogle,  1  Lutw.  550 ;  or  an  award  of 
three  fourths  of  the  whole  land  i)urchas- 
cd  of  C.  F.,  to  be  taken  off  the  upper 
part  of  said  land.  Duncan  v.  Duncan, 
1  Iredell,  466.  Coxtra,  of  an  award 
that  one  party  should  convey  to  the 
other  all  the  lands  he  held  by  a  certain 
deed  from  A.  Whitcomb  v.  Preston, 
13  Vermont,  53.  Sec  other  instances 
in  Clark  t'.  Burt,  4  Cush.  396  ;  Thomas 


cir.  III.] 


DEFENCES. 


205 


For  the  very  purpose  of  the  submission,  and  the  end  for  which 
the  law  favors  arbitration,  is  the  final  settlement  of  all  ques- 


V.  Molier,  3  Ham.  266 ;  White  v.  Bany, 
12  Wend.  377;  Young  v.  Reuben,  1 
Dall.  119;  Ilazcn  ?'.  Addis,  2  Green, 
333;  Hopcraft  v.  Hickman,  2  Sim.  & 
Stew.  130;  Walsh  v.  Gilmor,  3  Harr. 
&  J.  383  ;  Lyle  v.  Eodgers,  5  Whcaton, 
394 ;  Stonchewer  v.  Tarrar,  9  Jurist, 
203  ;  Parlvcr  v.  Epgleston,  .5  Blackf. 
128  ;  McDonald  v.  Bacon,  3  Scam.  428  ; 
Callahan  v.  McAIcxander,  1  Ala.  3GG. 
In  Lincoln  v.  Whittentou  Mills,  12  Met. 
31,  an  oral  agreement  was  made  by  L., 
a  land  owner,  and  the  owners  of  mills, 
who  flowed  Jiis  lands,  to  submit  to  re- 
ferees the  question,  what  damages  he 
should  receive.  The  referees  made  a 
written  award,  "  that  the  Taunton  Manu- 
factixring  Companj',  and  the  owners  of 
mills,  or  their  assigns,  shall  pay  to  L," 
a  certain  sum  annually,  "  so  long  as 
said  company  and  others  keep  up  their 
dam,  and  flow  as  heretofore  ;  with  the 
understanding  and  agreement,  that  if 
said  company  and  others  shall  discon- 
tinue their  dam,  the  said  L.,  his  heirs 
or  assigns,  shall  be  entitled  to  such 
damages  as  it  appears  his  land  sustains 
in  consequence  of  former  flowing,  until 
they  arrive  at  their  primitive  goodness." 
The  words  "  accepted  and  agreed  to  " 
were  written  on  the  award,  and  signed 
by  L.,  and  by  "  C.  11.  by  authority  of 
the  flowers,"  and  L.  was  paid,  for  seve- 
ral years,  the  amount  mentioned  in  the 
award  ;  but  it  did  not  appear  by  whom 
the  payment  was  made.  C.  R.  was 
not,  at  the  time  of  his  accepting  the 
award,  the  agent  of  the  Taunton  Manu- 
facturing Company,  nor  appointed  by 
them  for  that  purpose.  The  said  com- 
pany afterwards  ceased  to  do  business, 
and  their  mills  passed  to  other  owners, 
who  continued  to  flow  L.'s  lapds,  but 
refused  to  pay  the  full  amount  of  dam- 
ages awarded  by  the  referees,  and  ofter- 
cd  him  a  less  amount.  L.  refused  to 
receive  the  amount  so  offered,  and  filed 
a  complaint,  in  common  form,  under 
the  Eev.  Sts.  c.  116,  praying  for  a  jury 
to  estimate  the  damages  caused  by  flow- 
ing his  lands.  Held,  that  tlie  award 
was  void,  because  it  was  neither  certain 
nor  final ;  that  if  the  award  had  been 
valid,  it  would  not  have  bound  the  re- 
spondents, on  tlie  facts  of  the  case  ;  and 
that  L.  was  entitled  to  proceed  on  his 
complaint.    And  Wild,  J.,  said,  "  This 


case  turns  on  the  question  whether  the 
award  of  arbitrators,  relied  on  in  the 
defence,  is  valid  and  binding  on  the 
parties  to  the  present  suit.  An  award 
is  in  the  nature  of  a  judgment,  and,  to 
be  valid,  must  be  certain  and  decisive 
as  to  the  matter  submitted,  so  that  it 
shall  not  be  a  cause  of  a  new  contro- 
A'crsy.  Samon's  case,  5  Co.  77  ;  Bac. 
Ab.  Arbitrament  and  Award,  E.  2.  And 
although  an  award  may  be  good  in  part, 
and  in  part  void,  yet  this  rule  applies 
only  to  awards  in  which  the  parts  of  the 
award  are  distinct  and  independent  of 
each  other.  So  an  award  may  be  con- 
ditional ;  but  if  the  condition  leads  to 
a  new  controversy,  the  award  is  void. 
According  to  these  principles,  we  are  of 
opinion  that  the  award  in  question  is 
void,  as  being  vague  and  uncertain,  and 
not  final  as  to  the  matter  submitted  to 
the  arbitrators.  The  award  is  suflici- 
ently  certain  as  to  the  annual  payment 
to  be  made  by  the  owners  of  the  reser- 
voir dam  to  the  com])lainant ;  but  it 
is  expressly  on  the  understanding  and 
agreement,  that  if  the  Taunton  Manu- 
facturing Company  and  others  shall 
discontinue  said  dam,  the  complain- 
ant, his  heirs  and  assigns,  '  shall  be  en- 
titled to  such  damage  as  it  appears 
his  lands  sustained  in  consequence  of 
former  flowing,  until  they  shall  arrive 
at  their  primitive  goodness.'  It  is  clear, 
we  think,  by  this  part  of  the  award,  that 
it  is  not  final  and  certain  between  the 
parties,  but  that  the  matter  submitted  is 
left  open  to  a  future  controversy  on  the 
contingency  of  the  discontinuance  of 
the  dam."  In  Johnson  v.  Latham,  4 
Eng.  Law  &  Eq.  E.  203,  an  arbitrator 
had  to  decide  upon  the  depth  at  which 
the  defendant  was  entitled  to  keep  a 
weir  which  penned  back  the  water  of  a 
river,  so  as  to  interfere  with  the  plain- 
tiff's mill  higher  up  the  stream,  and  to 
determine  all  manner  of  rights  of  water 
between  the  parties.  The  arbitrator 
awarded  that  the  defendant  -was  entitled 
to  maintain  his  weir  to  the  deptli  of  four- 
teen inches,  and  no  more,  and  added 
tliat  he  luid  caused  marks  to  be  placed, 
which  marks  pointed  out  the  deptli  the 
defendant  was  to  keep  his  weir,  and  that 
a  plan  annexed  to  the  award  correctly 
defined  and  described  the  depth  of  the 
weir  and  the   marks  : — Held,  that  the 


VOL.  II. 


18 


206  THE  LAW  OF  CONTRACTS.  [PART  II. 

tions  and  disputes  ;  and  this  is  inconsistent  with  uncertainty. 
But  this  certainly  is  not  required  to  an  unreasonable  or  im- 
practicable degree ;  it  should  be  a  certainty  to  a  common  in- 
tent; and  the  nature  of  the  subject  should  be  considered; 
and  if  that  which  is  left  uncertain  by  the  words  of  the  award, 
can  be  made  perfectly  certain  by  a  reference  to  a  standard 
which  the  award  presents,  this  is  sufiicient.  (b)  An  award 
may  be  in  the  alternative,  (c)  If  it  be  that  one  party  shall 
pay  the  other  a  certain  sum,  but  no  time  of  payment  be  fixed, 
the  award  is  not  uncertain,  because  the  sum  awarded  be- 
comes payable  immediately,  or  within  a  reasonable  time,  (d) 
In  the  next  place,  the  award  must  be  possible ;  (e)  for  an 
award  requiring  that  to  be  done  which  can  not  be  done,  is 
senseless  and  useless.  But  the  impossibility  which  vitiates 
an  award  is  one  which  belongs  to  the  nature  of  the  thing,  and 
not  to  the  accidental  disability  of  the  party  at  the  time.  (/) 
Thus,  if  he  be  ordered  to  pay  money  on  a  day  that  is  past,  this 
is  void  ;  (g)  so  if  he  be  required  to  give  up  a  deed  which  he 
neither  has  nor  may  expect  to  have  ;  (h)  but  if  he  be  directed 
to  pay  money,  the  award  is  good,  although  he  has  no  money, 

award  sufficiently  pointed  out  the  depth  Pearson  v.  Archbold,  11  M.  &  "W.  477  ; 

of  the  weir,  and  was  sufficiently  precise,  Bourke  v.  Lloyd,  10  M.  &   W.   550; 

although  it  made  no  provision  for  the  England  v.  Davison,   9   Dowl.   P.   C. 

case  of  floods,  or  for  regulating  the  depth  1052;.  Martin  v.  Burge,  4  Ad.  &  EI. 

of  the  paddle  in  the  defendant's  weir,  973  ;  Purdy  v.  Delavan,  1  Caincs,  304 ; 

by  which  the  water  could  be  let  oft'.  Lutz  v.  Linthicum,  8  Pet.  165  ;   Brick- 

{b)  That  certainty,  to  a  common  in-  house  v.  Hunter,  4  Hen.  &  Mun.  363  ; 

tent  is  sufficient,  see  Wood  v.  Earl,  5  Coxe  v.  Lundy,  Coxa,  255. 
Ilawle,  44  ;  Brown  v.  Warnock,  5  Dana,         (c)  Oldfield  v.  Wilmer,  1  Leon.  140  ; 

402  •    Case  v.  Ferris,  2  Hill,  75  ;   Doo-  Lee  v.  Elkins,  12  Mod.  585  ;  Simmonds 

little  V.  Malcom,  8  Leigh,  GOB  ;   Coxe  v.  Swaine,  1  Taunton,  549  ;   Common- 

V.  Gent,  1  jMcMuUan,  302 ;   1  Rol.  Abr.  wealth   v.  Proprietors,    7    Mass.  399  ; 

tit.  Arb.  (H.)pl.  14;   Cargey  y.  Aitche-  Wharton  v.   King,  2   B.    &  Ad.  528; 

son,  2  B.  «Ss  C.  170;  Doe  d.  Williams  Thornton  v.  Carson,  7  Cranch,  596. 
V.   ilichardsou,  8  Taunt.  697  ;   Cayme        (d)  Freeman  v.  Baspoulc,  2  Brownl. 

w.  Watts,  3D.  &  11.  224;  Grier  u.  Grier,  309;   Imlay  v.  Wikoff,  1    South.  132; 

1   Dall.  173  ;   Kingston  v.  Kincaid,   1  Blood   r.   Shine,  2  Florida,   127.     An 

Wash.  C  C  448.     Thus,  an  award  to  award  of  "taxable  costs"  to  be  paid  by 

pay  the  "taxable  costs,"    is  sufficient-  one  party  is  not  void  for  uncertainty, 

ly  certain.     Kichols  v.  Rensselaer  Mut.  That  is  certain  wliich  can  be  rendered 

Ins.    Co.    22    Wend.   125;    Macon   v.  certain.  Wrigliti?.  Smith,  19  Verm.  110. 
Crump,  1   Call,   575  ;   Brown  v.  War-         (c)  Colwel  v.   Child,  1  Ch.  Cas.  87  ; 

nock,  5  Dana,  492.    So  to  pay  a  certain  Kuncklc  v.  Kunckle,  1  Dallas,  364. 
sum  in  90  days,  and  interest.     Skeels         (./")  1  liol.  Abr.  tit.  Arb.  (B.)  pi.  16; , 

V.  Cliickering,  7  Met.  316.     See  Bealo  and  sec  Wharton  v.  King,  2  B.  «&  Ad. 

i>.  Beale,  Cro.  Car.  383  ;  Furnis  v.  Hal-  528. 

lorn,  Barnes,  166  ;  Fox  v.  Smith,  2  Wils.         (//)  1  Rol.  Abr.  tit.  Arb.  (B.)  pi.  17. 
207  ;  Bi-^elow  v.  Maynard,  4  Cush.  317  ;        (It)  Lcc  i-.  Elkius,  12  Mod.  585. 


CII.  III.] 


DEFENCES. 


207 


for  it  creates  a  valid  debt  against  him.  (i)  Nor  can  a  party 
avoid  an  award  on  the  ground  of  an  impossibility  created  by 
himself,  after  the  award,  or,  perhaps,  beforehand,  if  for  the 
purpose  of  evading  an  expected  award,  (j) 

This  impossibility  may  be  actual,  or  it  may  be  that  created 
by  law  ;  for  an  award  which  requires  that  a  party  should  do 
wkat  the  law  forbids  him  to  do,  is  void,  either  in  the  whole, 
or  for  so  much  as  is  thus  against  the  law,  if  that  can  be 
severed  from  the  rest,  (k) 

An  award  must  be  reasonable ;  (/)  if  it  be  of  things  in 
themselves  of  no  value  or  ad\rantage  to  the  parties  or  out  of 
all  proportion  to  the  justice  and  requirements  of  the  case,  or 
if  it  undertake  to  determine  for  parties  what  they  should  de- 
termine for  themselves,  as  that  the  parties  should  intermarry, 
it  is  void.  It  is  not  unreasonable,  however,  merely  because 
it  lays  a  burden  on  one  party  only,  and  requires  nothing  of 
the  other.  It  used  to  be  said,  that  mutuality  was  essential  to 
an  award,  [m)  It  is  certain  now  that  this  mutuality  need  not 
appear  upon  the  face  of  the  award  ;  and  indeed  it  can  hardly 
be  supposed  necessary  at  all.  (w)     If  A.  and  B.  refer  only  a 


(/)  Bro.  Abr.  tit.  Arb.  pi.  39  ;  1  Eol. 
Abr.  tit.  Arb.  (F.)  pi.  2. 

(/)  Com.  Dis?.  lit.  Arb.  (E.  12.) 

(k)  1  Rol.  Abr.  tit.  Arb.  (G.)  pi.  1. 
See  Alder  v.  Saville,  5  Taunt.  454  ; 
Maybin  v.  Coulon,  4  Dallas,  298 ;  Har- 
ris V.  Curnow,  2  Chitty,  594  ;  Turner 
V.  Swainson,  1  M.  &  W.  572. 

(1)   See    i    Kol.   Abr.  tit.  Arb.    (B.) 

pi.    12.    13;    Cooper   v.  ,  3   Cii. 

Rep.  76,  cited  in  1  Vern.  157  ;  Earl 
V.  Stocker,  2  Vernon,  251  ;  Caven- 
dish V. ,  1   Cli.  Cas.  279.     But  a 

strong  case  of  unreasonableness  must 
be  made  out  in  order  to  induce  courts 
to  set  aside  an  award  ;  since  tlic  parties 
made  choice  of  their  own  judge.  Sec 
Wood  V.  Griffith,  1  Swanst.  43  ;  Brown 
V.  Brown,  1  Vern.  157,2  Ch.  Cas.  140; 
Waller  v.  King,  9  Mod.  63  ;  Hardy  v. 
Innes,  6  J.  B.  Moore,  574.  As  to  the 
consistency  required  in  an  award,  see 
Ames  V.  Millward,  2  J.  B.  Moore,  713. 

(m)  1  Rol.  Abr.  tit.  Arbit.  (K).  And 
see  Gibson  v.  Powell,  5  Smcdes  & 
Marsh.  712  ;  McKeen  v.  Oliphant,  3 
Harr.  442. 

(h)  The  doctrine  of  mutuality  is  not 


now  applied  in  the  strict  sense  it  was 
formerly  taken.  Horrel  v.  MeAlexan- 
der,  3  Rand.  94.  It  is  not  necessary 
that  the  same  acts  should  be  done  by 
each  party.  Munro  v.  Alaire,  2  Caincs, 
320  ;  Kum:kle  v.  Kunckle,  1  Dall.  364. 
The  doctrine  of  mutuality  is.  fully  ex- 
pounded in  Purdy  v.  Delavan,  1  Caines, 
315,  by  Kent,  J.,  and  in  Jones  v.  Bos- 
ton Mill  Corpoi-ation,  6  Pick.  148.  In 
Onion  v.  Robinson,  15  Verm.  510,  0. 
and  W.  having  a  claim  against  R.  for 
money  received,  to  their  use,  and  li. 
alleging  that  he  had  paid  it  to  O.,  they 
submitted  the  matter  to  arbitrators  with 
authority  to  award  costs  and  damages, 
who  awarded  that  R.  account  to  O.  for 
a  certain  sum,  in  damages  and  costs. 
In  a  suit  on  the  award  in  favor  of  O., 
it  was  held  that  there  was  no  mutuality 
in  the  submission  between  O.  and  R., 
and,  that  neither  the  rights  nor  liabi- 
lities of  either,  were  affected  by  the 
award.  IMd,  also,  that  the  submission 
and  award,  though  legally  invalid,  might 
be  given  in  evidence  under  a  declara- 
tion setting  forth  the  above  facts. 


:20S 


THE   LAW    OF   CONTRACTS. 


[part  II. 


claim  which  A.  has  on  B.,  and  the  award  is  simply  that  B. 
pay  A.  a  certain  sum  of  money,  it  would  be  good,  but  it 
would  have  no  element  of  mutuality  that  did  not  belong  to 
it  necessarily,  (o) 

Lastly,  the  award  must  be  fnial  and  conclusive,  (p)  This 
necessity  springs  also  from  the  very  purpose  for  which  the 
law  favors  arbitration,  namely,  the  settlement  and  closing t)f 
disputes,  (q)  But  here  too,  as  on  other  points,  the  law  is 
now  more  rational  and  less  technical  than  it  was  formerly. 
Thus,  it  was  once  a  rule  that  an  award  of  nonsuit  was  not 


(o)  Weed  V.  Ellis,  3  Caines,  255  ; 
Gordon  i\  Tucker,  6  Greenl.  247  ;  Gay- 
lord  V.  Gaylovd,  4  Day,  422  ;  v. 

Palmer,  12  Mod.  234  ;  Horton  v.  Ben- 
son, Freeman,  204  ;  Doolittle  v,  Mal- 
com,  8  Lciph,  60S. 

(p)  Sec  Good e  I'.  Waters,  1  'Eng.  Law 
&  Eq.  IJ.  181  ;  Carnochan  v.  Chistie, 
11  Wheat.  4tG.  An  award,  which,  after 
disposing;  of  the  claims  of  some  of  the 
parties,  declared  that  as  to  the  claims  of 
certain  other  parties,  they  should  be  at 
liberty  to  prosecute  the  same,  cither  at 
law  or  equity,  in  like  manner  as  if  the 
order  of  reference  had  never  been  made, 
is  not  final.  Turner  v.  Turner,  o  liuss. 
Ch.  K.  494.  But  an  award  directing 
the  execution  of  mutiial  and  general 
releases  is  final.  Bell  v.  Gipps,  2  Ld. 
Eavm.  1141  ;  Birks  v.  Trippet,  1  Saun- 
ders, 32;  Wharton  v.  King,  2  B.  & 
Ad.  528.  So  of  an  award  that  plaintiff 
has  no  good  cause  of  action.  Dibben 
V.  Marquis  of  Anglesca,  4  Tyrwh.  92G  ; 
McDermott  v.  U.  S.  Ins.  Co.  3  Serg.  & 
R.  G04;  Craven  v.  Craven,  1  J.  B. 
Moore,  403  ;  Jackson  v.  Yabsley,  5  B. 
&  Al.  849  ;  Angus  v.  Redford,  11  M. 
&  W.  60. 

(7)  An  award  settling  the  costs  on 
both  sides,  without  saying  more,  is  final 
and  conclusive.  Buckland  v.  Conway, 
16  Mass.  396;  Traquair  v.  Bedingcr, 
4  Yeates,  282 ;  Ilartncll  v.  Hill,  For- 
rest, 73.  An  award  that  defendant 
should  pay  costs,  without  saying  to 
whom^'i?,  not  uncertain.  Baily  v.  Curl- 
ing, 4  Eng.  Law  &  Eq.  R.  201.  In 
Hancock  v.  Reede,  6  Eng.  Law  & 
Eq.  368,  II.  &  M.  being  partners,  bad 
covered  wires  with  gutta  percha  for  R., 
in  pursuance  of  a  contract.  Tlicy  after- 
wards assigned  the  partncrsbi])  business 
to  C.  11.,  with  power  to  him  to  take  pro- 


ceedings in  their  name  for  the  recoveiy 
of  debts  due  to  them,  to  enforce  exist- 
ing contracts,  and  to  deal  in  respect 
thereof  as  they  themselves  might  have 
done.  C.  II.,  after  the  assignment,  al- 
so covered  wires  for  R.  on  his  own  ac- 
count, and  brought  two  actions  against 
him,  one  in  his  own  name,  the  other  in 
the  name  of  H.  &  M.  It  had  been  agreed 
between  C.  H.  and  R.  to  refer  both  ac- 
tions, and  all  matters  in  difi^"ercnce;  as 
well  between  H.  &  M.  and  II.  as  be- 
tween C.  II.  and  R.,  to  arbitration; 
whereupon  an  order  of  reference  was 
drawn  up,  and  an  award  had  been 
made : — Held,  that  the  award  was  not 
bad  for  want  of  finality  in  awarding  a 
discontinuance  of  H.  &  M.'s  action  with- 
out determining  the  cause  of  action,  as 
it  appeared  that  the  discontinuance  had 
been  entered  before  or  at  the  time  of 
making  the  order  of  reference,  and  that 
it  was  left  to  the  arbitrator  to  decide 
whether  the  discontinuance  should  re- 
main, and  it  was  intended  that  he 
should  not  proceed  further  in  that  ac- 
tion.— Where  several  issues  are  involv- 
ed in  the  pleadings,  and  the  whole  case 
is  referred,  the  costs  to  abide  the  result, 
it  ought  to  appear  that  each  issue  was 
disposed  of.  See  Pearson  v.  Archbold, 
11  M.  &W.  477;  Bourkc  v.  Lloyd,  10 
M.  &  W.  550  ;  Stonehcwer  v.  Parrar,  6 
Q.  13.  Rep.  730  ;  Phillips  ?•.  Higiiins,  5 
Eng.  Law  &  Eq.  R.  295;  Wilcox  v. 
Wilcox,  4  Exch.  500;  Kilburn  v.  Kil- 
burn,  13  M.  &  W.  671.  So  where  a 
cause,  and  aU  matters  in  clijjerence,  are 
referred,  the  costs  to  abide  the  result,  the 
award  ought  to  distinguisli  between  the 
matters  in  the  cause  and  other  matters 
of  difiercnce.  See  ]\Iartin  v.  Burgc,  4 
Ad.  &  El.  973. 


en.  III.] 


DEFENCES. 


209 


good,  because  not  final,  as  the  plaintiff  might  immediately 
renew  his  action  ;  (r)  but  this  would  hardly  be  held  now. 
An  award  of  discontinuance  of  a  suit  has  always  been  held 
sufficient,  (s)  It  is  not  a  valid  objection  to  an  award,  that 
it  is  upon  a  condition,  if  the  condition  be  clear  and  cer- 
tain, consistent  with  the  rest  of  the  award,  in  itself  reason- 
able, and  such  as  to  cause  no  doubt  whether  it  were  per- 
formed or  not,  or  what  were  the  rights  or  objections  de- 
pendent upon  it.  (t) 

Any  delegation  or  reservation  of  their  authority  by  the 
arbitrators,  which  would  have  the  eflfect  of  leaving  any  thing 
to  the  future  judgment  or  power  of  the  arbitrators,  would 
vitiate  the  award,  (m)  But  where  arbitrators  are  unable  to 
decide  accurately  upon  some  particular  point,  requiring  some 
technical  knowledge,  they  may  refer  the  settlement  of  the 
details  to  some  third  person  having  such  knowledge,  the 
arbitrators,  however,  accurately  determining  the  principles 
by  which  such  person  is  to  be  governed,  {v) 


(r)  Knight  v.  Burton,  Salk.  75  ;  1 
Kol.  Abr.  tit.  Arb.  (I.)  pi.  16  ;  Pliilips 
V.  Knightley,  1  Barnard.  463.  But  in 
Miller  v.  Miller,  5  Binn.  62,  it  was  said 
that  arbitrators  had  no  power  to  award 
a  nonsuit.  Nor  have  they  to  arrest 
judgment,  if  their  power  be  only  to 
direct  how  a  verdict  shall  be  entered. 
Angus  r.  Bedford,  11  M.  &  W.  69. 

(s)  Blanchard  v.  Lilley,  9  East.  497  ; 
Philips  V.  Knightly,  1  Barnard.  463  ; 
Linsey  i\  Ashton,  Godb.  255  ;  Ingram 
V.  Webb,  1  Rol.  362.  Or  that  plaintitf 
should  enter  a  retraxit.  1  Rol.  Abr.  tit. 
Arb.  (F.)  pi.  7,  (I.)  pi.  18.  Or  that  no 
suit  should  be  brought  by  one  party 
against  the  other  on  a  certain  bond. 
1  Rol.  Abr.  tit.  Arb.  (0.)  pi.  7.  Or  tliat 
all  suits  then  pending  between  tlic  par- 
ties should  cease.  Squire  r.  Grevell, 
6  Mod.  33,  Ld.  Raym.  961,  Salk.  74. 
Or  that  a  chancery  suit  should  be  dis- 
missed. Knight  V.  Burton,  6  Mod. 
232,  Salk.  75.  See  Purdy  r.  Dclavan. 
1  Gaines,  304,  for  an  able  statement  of 
the  law  upon  this  point  by  Mr.  Justice 
Kent. 

{t)  Collet  V.  Podwell,  2  Kcblc.  670  ; 
Cockill  V.  Witherell,  2  Keble,  838  ;  1 
Rol.  Abr.  tit.  Arb.  (H.)  pi.  S;  Purser 
V.   Prowd,  Cro.  Jac.   423.     An   award 

18* 


that  one  party  should  pay  the  other  a 
particular  debt,  in  case  it  was  not  col- 
lected from  another  source,  is  valid. 
Williams  v.  Williams,  1 1  Sm.  &  Marsh. 
393. 

(u)  Archer  v.  Williamson,  2  Harr.  & 
Gill,  62  ;  Levezey  v.  Gorgas,  4  Dallas, 
71  ;  Lingood  v.  Eade,  2  Atk.  501  ; 
Emery  v.  Emery,  Cro  Eliz.  726  ;  Man- 
ser V.  Heaver,  3'B.  &  Ad.  295  ;  Tandy 
V.  Tandy,  9  Dowl.  P.  C.  1044,  5  Jurist, 
726.  So  an  award  that  one  party  should 
put  certain  premises  in  good  repair,  to 
the  satisfaction  of  a  third  party,  has 
been  held  bad,  m  toto.  Tomlin  v.  Mavor, 
&c.  of  Fordwich,  5  Ad.  &  El.  147.  "  So 
an  award  that  A.  should  beg  B.'s  par- 
don, in  such  form  as  B.  siiould  ap- 
point, is  an  improper  delegation  of 
authority.  Glover  v.  Barrie,  Salk.  71  ; 
Lutw.  1597. 

(r)  See  Emery  v.  Wase,  5  Vesey, 
846  ;  Anderson  v.  Wallace,  3  CI.  & 
Finn.  26  ;  Sharp  v.  Nowell,  6  C.  B. 
258  ;  Hopcraft  r.  Hickman,  2  Sim. 
&  Stw.  130  ;  Scale  v.  Fothergill,  8 
Beav.  361  ;  Church  v.  Roper,  1  Ch. 
Rep.  75  ;  Lingood  i'.  Eade,  2  Atk.  501  ; 
Cater  v.  Startutc,  Styles,  217;  Furnis 
V.  Hallom,  Barnes,  166  ;  Winter  v. 
Garlick,  Salk.  75,  G  Mod.  195  :   Worral 


-10  THE   LAW    OF   CONTRACTS. 


PART  II. 


An  award  may  be  open  to  any  or  all  of  these  objections 
in  part,  without  being  necessarily  void  in  the  whole.  So 
much  of  it  as  is  thus  faulty,  is  void  ;  but  if  this  can  be  sever- 
ed distinctly  from  the  residue,  leaving  a  substantial,  definite, 
and  unobjectionable  award  behind,  this  may  be  done,  and 
the  award  then  will  take  effect,  (lo)  It  is  therefore  void  in 
the  whole  because  bad  in  part,  only  where  this  part  cannot 
be  severed  from  the  residue,  or  where,  if  it  be  severed  and 
amended,  leaving  the  residue  in  force,  one  of  the  parties 
will  be  held  to  an  obligation  imposed  upon  him,  but  deprived 
of  the  advantage  or  recompense  which  it  was  intended  that 
he  should  have,  (x) 

Generally  in  the  construction  of  awards,  they  are  favored 
and  enforced,  wherever  this  can  properly  be  done.  If  the 
intention  of  the  arbitrators  can  be  ascertained  from  the 
award  with  reasonable  certainty,  and  this  intention  is  open 
to  no  objection,  a  very  liberal  construction  will  be  allowed 
as  to  form,  or  rather,  a  very  liberal  indulgence  as  to  matters 
of  form  and  expression,  (y) 

If  it  be  necessary  to  make  a  presumption  on  the  one  side 
or  the  other,  to  give  full  force  and  significance  to  an  award, 

!'.  Akv.'ortli,   2   Kcbl.   331  ;   Hunter  v.  directs  one  party  to  deliver  up  a  deed 

Bcnnison,  Hard.  43  ;  Galloway  v.  Webb,  not  iu  his  possession,  or  pay  a  sum  of 

Hardin,  318.  money,  the  last  is   good  and  the  first 

(?y)  This  is  a  perfectly  well  settled  bad,  and  the  aAvard  is  not  invalid.    Lee 

doctrine  in  the  law  of  arbitrament  and  v.  Elkins,   12  Mod.  585  ;  Slmmonds  v. 

award  ;    too  well   settled  to  need  the  Swaine,  1  Taunt.  549  ;   and  sec  Whar- 

citation  of  authorities.    A  few  instances  ton  r.  King,  2  B.  &  Ad.  528  ;  Tliornton 

of  the  application  of  the   principle  are  i\  Carson,  7  Cranch,  596 ;    Skillings  v. 

given  by  way  of  illustration.     Thus,  in  Coolidgc,  14  Mass.  43. 

an  award   that  defendant   should  pay  (,r)  If  the  void  part  of  the  award  was 

plaintiff  a  certain  sum,  w/kZ  o/so //(e  coste  apparently  intended  by  the  arbitrators 

of  arbiiration,  where  the  arbitrator  had  as  the  consideration,  in  whole  or  in  ]iart, 

no  power  to  award  costs,  that  part  is  of  that  portion  which  is  good,  or  if  the 

bad,  but  the  rest  is  valid.     Candler  v.  void  part  manifestly  ail'ccted  the  judg- 

Fullcr,   Willis,   62  ;  Yox  v.   Smith,  2  ment  of  the  arbitrators,   in  respect  to 

Wilson,  267  ;   Addison  v.  Gray,  2  Wil-  other  matters,  the  whole  is  clearly  void, 

son,  293  ;   Gordon  r.  Tucker,  6  Grcenl.  See  Pope  v.  Brett,   2   Saunders,  292, 

(Bennett's  Ed.)  247.     So  in  an  award  where  part  was  void  for  uncertainty; 

directing  a  lease  for  life  to  one  party.  Winch  i:  Sanders,  Cro.  Jac.  584,  where 

and  a  remainder  over  in  fee  (o  a  ihiid  per-  part  was  void   I)ecansc   the   arbitrator 

son.  tlic  last  part  was  rejected,  and  the  had  reserved  to  himself  a  future  autlio- 

first  supported.     Bretton  v.  Prat,  Cro.  rity.     See  further  Storkc  r.  ])e  Sineth, 

Eliz.  758.     And  so  where  part  of  the  Willes,  G6  ;  Johnson  r.  Wilson,  Willcs, 

sum  awarded  to  one  party,  was  founded  248;    Clement    v.    Durgin,    1    Grcenl. 

upon  a  claim,  illegal  in'its  nature,  the  (Bennett's  Ed.)  300. 

other  portion  being  separable.     Aubert  (y)  Spear  r.  Jloopcr,  22  Pick.  144  ; 

'•.  Maze,  2  B.  &  P.  371.     So  if  an  award  Ei.xford  v.  Nye,  20  Verm.  132. 


en.  III.]  DEFENCES.  211 

the  court  will  incline  to  make  that  presumption  which  gives 
efTect  to  the  award,  rather  than  one  which  avoids  it.  (z) 
Thus,  it  has  been  laid  down,  almost  as  a  rule,  and  certainly 
as  a  maxim,  that  where  the  words  of  an  award  extend  be- 
yond those  of  the  submission,  it  shall  be  understood  that  they 
are  mere  surplusage,  because  there  is  nothing  between  the 
parties  more  than  was  submitted ;  (a)  and  if  the  words  of 
the  award  be  less  comprehensive  than  those  of  the  submis- 
sion, it  shall  be  understood  that  what  is  omitted  was  not 
controverted,  unless,  in  cither  case,  the  contrary  is  expressly 
shown,  (b)  And  if  the  submission  be  in  the  most  general 
terms,  and  the  award  equally  so,  covering  "  all  demands  and 
questions,"  &c.,  between  the  parties,  yet  either  party  may 
show  that  a  particular  demand  either  did  not  exist,  or  was 
not  known  to  exist,  when  the  submission  was  entered  into,  or 
that  it  was  not  brought  before  the  notice  of  the  arbitrators, 
or  considered  by  them,  (c) 

There  are  certain  words  and  phrases  often  used  in 
awards,  which  seem  to  have  acquired  from  practice  a  le- 
gal signification.  Thus,  "  costs,"  will  mean  only  the  legal 
costs  of  court;  and  even  "  charges  and  expenses"  mean 
no  more,  vmless  more  be  specially  indicated,  (d)  Such 
at  least  is  the  English  authority ;  but  it  might,  perhaps, 
be  expected  that  the  courts  of  this  country  would  exe- 
cute the  intention  of  the  parties,  and  construe  such  very 
general  words  as  these  accordingly.  So  "  releases "  mean 
to  the  time  of  the  submission,  and  have  been  so  construed 

(z)  Armitt  v.  Brcnme,  2  Ld.  Eayni.  Tutop,  G  T.  E.  607  ;  Martin  r.  Thorn- 
1076 ;  Booth  v.  Ganiett,  2  Strange,  1082  ;  ton,  4  Esp.  180.  But  see  Jones  v.  Ben- 
Rose  V.  Spark,  Aleyn,  51.  nett,  1    Bro.   P.    C.   411  ;    Shelling  v. 

(a)  Alder   i'.   Savill,   5  Taunt.  454  ;  Farmer,  1  Str.  G4G  ;    Smith  r.  Johnson, 

Solomons  v.  IMcKinstrv,  13  Johns.  27.  15  East,  213  ;  Dunn  v.  Mun-ay,  9  B.  & 

(h)  Knight  v.  Burton,  6  Mod.  231  ;  C.  780. 
Middleton   v.    Weeks,   Cro.  Jac.  200  ;         (d)  Fox  r.  Smith,  2  Wils.  267.     And 

Vanvivce  i'.  Vanvivee,  Cro.  Eliz.  177  ;  an  award  of  costs  (jena-aUy,  is  under- 

Webb  V.  Ingram,  Cro.  Jac.  6G4  ;  Lewis  stood  to  be  costs  to  be  taxed  by  the  pro- 

V.  Burgess,   5   Gill,    129  ;    Bobcrts   r.  per  officer.     Sec  Dudley  v.  Nettlcfold, 

Marictt,  2  Saund.  188  ;  Cable  r.  Rogers,  Strange,  737.     An  award  that  the  costs 

3  Bulstr.  311  ;   Ward  v.  Uncorn,  Cro.  be  paid  immediately  by  one  party,  means 

Car.  216;   Bussfield  r.  Bussfield,  Cro.  that  they   are  payable   upon  notice  to 

Jac.  577.  such  party-     Hoggins  v.  Gordon,  3  Q. 

(c)  Eavec  v.  Farmer,  4  T.  R.  146  ;  B.  466  ;  'Wright   v.   Smith,  19   Verm. 

Golightly  V.  Jellicoc,  id.  147,  n. ;  Tliorpc  110;    Safford  v.  Stevens,  2  Wend.  158  ; 

'.-.    Cooper,   5   Bing.    129  ;    Seddon    v.  Barnes  i-.  Barker,  8  Mete.  134. 


212 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


even  when  the  words  used  were  "  of  all  claims  to  the  time 
of  the  award;"  for  the  arbitrators  had  no  authority  to  go 
beyond  this  limit,  (c)  And  if  by  an  award  money  is  to 
be  paid  in  satisfaction  of  a  debt,  this  implies  an  award  of  a 
release  on  the  other  side,  and  makes  this  a  condition  to  the 
payment.  (/) 

There  is  no  especial  form  of  an  award  necessary  in  this 
country,  (g-)  If  the  submission  requires  that  it  should  be 
sealed,  it  must  be  so.  (h)  And  if  the  submission  was  made 
under  a  statute,  or  under  a  rule  of  court,  the  requirements  of 
the  statute  or  the  rule  should  be  followed.  But  even  here 
mere  formal  inaccuracies  would  seldom  be  permitted  to  vitiate 
the  award.  If  the  submission  contains  other  directions  or 
conditions,  as  that  it  should  be  delivered  to  the  parties  in 
writing,  or  to  each  of  the  parties,  such  directions  must  be 
substantially  followed.  Thus,  in  the  latter  case,  it  has  been 
held  that  it  is  not  enough  that  a  copy  be  delivered  to  one  of 
the  parties  on  each  side,  but  each  individual  party  must  have 
one.  (i) 


(e)  Making  v.  Wclstrop,  rrcem.  462  ; 
White  r.  Holford,  Sty.;i70;  Hooper  r. 
Pierce,  12  Mod.  116  ;  Squire  v.  Grevell, 
6  Mod.  34  ;  Abrahat  v.  Brandon,  10 
Mod.  201  ;  Hcrrick  v.  Herrick,  2  Kcb. 
431  ;  Robinet  v.  Cobb,  3  Lev.  188  ; 
Nicholas  v.  Chapman,  3  Lev.  344. 

(/)  Mawc   V.    Samuel,   2    Roll.    1  ; 

V.  Palmer,  12  Mod.  234  ;  Brown 

V.  Savage,  Cas.  temp.  Finch,  184. 

(g)  It  may  be  under  seal,  or  in  -writ- 
ing, or  oral,  if  there  is  nothing  in  the 
submission  to  the  contrary.  Cable  v. 
Rogers,  3  Bulstr.  311 ;  Marsh  v.  Pack- 
er, 20  Verm.  198;  Gates  v.  Broracll, 
Holt's  R.  82. 

(h)  Stanton  r.  Henry,  11  Johns.  133; 
Rea  V.  Gibbons,  7  S.  &  R.  204. 

(i)  Huntgate  V.  Mease,  Cro.  Eliz.  885. 
Sed  quare.  Sec  Pratt  v.  Hackctt,  6 
Johnson,  14.  So,  if  by  the  submis- 
sion, the  award  is  to  be  indorsed  on  the 
submission,  an  award  annexed  to  the 
submission  I)y  a  Avafcr,  is  not  valid. 
^Montague  r.  Smith,  13  Mass.  396.  But 
this  seems  too  mucli  like  forsaking  the 
substance,  and  clinging  to  the  shadow. 
Perhaps  tlie  fact  proved  in  that  case, 
that  the  arbitrators  by  mistake  annexed 
the  wrong  paper  to  the  submission,  was 


the  real  cause  of  the  decision. — If  the 
submission  require  the  award  to  be 
attested  by  witnesses,  such  attestation 
is  necessary,  and  the  submission  may 
be  revoked  at  any  time  before  such  at- 
testation, although  the  arbitrators  have 
done  all  their  duty.  Bloomer  v.  Sher- 
man, 5  Paige,  575  ;  see  Newman  v. 
Labeaume,  9  Missouri,  30. — If  by  the 
submission  the  award  must  be  ready  for 
delivery  at  a  day  certain,  the  award  is 
complete,  if  it  be  in  fact  ready  on  that 
day,  although  not  delivered,  and  al- 
though some  accident  should  occur  by 
which  it  should  never  be  delivered  at 
all.  Brown  v,  Vawscr,  4  East,  584  ; 
and  see  Henfree  v.  Bromley,  6  East, 
309  ;  Macarthur  v.  Campbell,  5  B.  & 
Ad.  518.  In  Brooke  v.  Mitchell,  6  M. 
&  W.  473,  where  an  order  of  reference 
required  that  the  arbitrator  should  make 
and  publish  his  award  in  writing,  ready 
to  be  delivered  to  the  parties,  or  such  of 
them  as  should  require  the  same,  on  or 
before  a  certain  day,  it  was  licld  that  tlic 
award  was  "  published,  and  ready  to  be 
delivered,"  within  the  meaning  of  the 
order,  when  it  was  executed  by  the 
arbitrator  in  the  presence  of,  and  attest- 
ed by  witnesses,  and  that  it  could  not 


CII.  III.] 


DEFENCES. 


213 


If  ail  award  be  relied  on  in  defence,  the  execution  of  the 
submission  by  each  party,  or  the  agreement  and  promise  by 
each,  if  there  was  no  submission  in  writing,  must  of  course 
be  proved,  because  the  promise  of  the  one  party  is  the  consi- 
deration for  the  promise  of  the  others,  {j ) 

An  award  is  so  far  like  a  judgment  that  an  attorney  has 
been  held  to  have  a  lien  upon  it  for  his  fees ;  but  it  is  not 
the  same  thing  in  all  respects,  [k) 

It  may  happen,  where  an  award  is  offered  in  defence,  or 
as  the  ground  of  an  action,  that  it  is  open  to  no  objection 
whatever  for  any  thing  which  it  contains  or  which  it  omits; 
and  yet  it  may  be  set  aside  for  impropriety  or  irregularity  in 
the  conduct  of  the  arbitrators,  or  in  the  proceedings  before 
them.  Awards  are  thus  set  aside  if  "  procured  by  corrup- 
tion or  undue  means,"  as  is  said  in  the  stat.  9  and  10  Wm. 
3,  ch.  15,  which  is  held  as  only  declaratory  of  the  law  as  it 
was  before.  This  rule  rests,  indeed,  on  the  common  princi- 
ple that  fraud  vitiates  and  avoids  every  transaction.  So  too 
it  may  well  be  set  aside  if  it  be  apparent  on  its  face  that  the 
arbitrator  has  made  a  material  mistake  of  fact  or  of  law.  (Z) 
It  must,  however,  be  a  strong  case  in  which  the  court  would 
receive  evidence  of  a  mistake,  either  in  fact  or  in  law,  which 
did  not  appear  in  the  award,  and  was  not  supposed  to  spring 
from,  or  indicate  corruption,  and  was  not  made  out  to  the 
arbitrator's   satisfaction,  [m)     It  has  been  permitted  to  the 


be  set  aside,  althongli  the  plaintiff  died 
on  the  following  day,  and  before  he  had 
notice  that  tlie  award  was  ready.  In 
Sellick  V.  Addams,  15  Johnson,  197, 
it  was  held  that  wlicrc  sworn  copies 
of  an  award  are  delivered  to  the  par- 
ties by  the  arbitrators,  and  receiv- 
ed without  objection,  this  is  a  waiver 
of  their  right  to  receive  the  original 
award. 

(j)  Antram  v.  Chace,  1.')  East,  209. 

(k)  Onncrod  v.  Tate,  1  East,  464  ; 
Cowell  V.  Betteley,  4  Moore  &  Scott, 
265  ;  s.  0.  not  as  well  reported  upon 
this  point  in  10  Bing.  432.  But  sec 
Dunn  V.  West,  1  Eng.  Law  &  Eq.  R. 
325.  See  also  Collins  v.  Towell,  2  T. 
li.  756,  that  there  is  a  difference  between 
money  awarded,  and  money  recovered 
by  a  judgment. 


[1)  See  Aubert  v.  Maze,  2  B.  &  P. 
371  ;  Pringle  v.  MeClenachan,  1  Dall. 
487. 

(m)  Tliis  subject  was  very  fully  con- 
sidered in  The  Boston  Water  Power 
Co.  r.  Gray,  6  Jlct.  131.  From  the 
able  opinion  of  Shaiv,  C.  J.,  we  quote 
the  following : — "  It  is  clearly  settled 
that  an  award  is  prima,  facie  binding 
upon  the  parties,  and  the  burden  of  proof 
is  upon  the  party  who  would  avoid  it. 
In  general,  arbitrators  have  full  jiowcr 
to  decide  upon  questions  of  law  and  fact, 
which  directly  or  incidentally  arise  in 
considering  and  deciding  the  questions 
embraced  in  the  submission.  As  inci- 
dent to  the  decision  of  the  questions  of 
fact,  they  have  power  to  decide  all  ques- 
tions as  to  the  admission  and  rejection 
of  evidence,  as  well  as  the  credit  due  to 


214 


THE  LAW   OF   CONTRACTS. 


[part  II. 


arbitrators  to  state  a  mistake  of  fact,  which  they  afterwards 
discovered ;  but  it  would  seem  that  the  court  cannot  then 


evidence,  and  the  inferences  of  fact  to 
be  drawn  from  it.  So,  when  not  limit- 
ed by  the  terms  of  the  submission,  tliey 
have  authority  to  decide  questions  of 
law,  necessary  to  the  decision  of  the 
matters  sulimittcd ;  because  they  are 
judges  of  the  parties  own  choosing. 
Their  decision  upon  matters  of  fact  and 
law,  thus  acting  within  the  scope  of  their 
authority,  is  conclusive,  upon  the  same 
principle  that  a  final  judgment  of  a 
court  of  last  resort  is  conclusive  ;  which 
is,  that  the  party  against  whom  it  is 
rendered  can  no  longer  be  heard  to 
question  it.  It  is  within  the  principle 
of  7'cs  judicala  ;  it  is  the  final  judgment 
for  that  case,  and  between  those  parties. 
It  is  amongst  the  rudiments  of  the  law, 
that  a  party  cannot,  when  a  judgment 
is  relied  on  to  support  or  to  bar  an  ac- 
tion, avoid  the  effect  of  it  by  proving, 
even  if  he  could  prove  to  perfect  demon- 
stration, that  there  was  a  mistake  of  the 
facts  or  of  the  law.  But  this  general 
rule  is  to  be  taken  with  some  excep- 
tions and  limitations,  arising  either  from 
the  submission,  or  from  the  award  itself, 
or  from  matter  distinct  from  either.  If 
the  submission  be  of  a  certain  contro- 
versy, expressing  that  it  is  to  be  decided 
conformably  to  the  principles  of  law, 
then  both  parties  proceed  upon  the  as- 
sumption that  their  case  is  to  be  decid- 
ed by  the  true  rules  of  law,  which  arc 
presumed  to  be  known  to  the  arbitra- 
tors, who  are  then  only  to  inquire  into 
the  facts,  and  apply  the  rules  of  law  to 
them,  and  decide  accordingly.  Then 
if  it  appears  by  the  award,  to  a  court  of 
competent  jurisdiction,  that  the  arbitra- 
tors have  decided  contrary  to  law,  of 
which  the  judgment  of  such  a  court, 
when  the  i)arties  have  not  submitted  to 
another  tribunal,  is  the  standard,  the 
necessary  conclusion  is,  that  the  arbi- 
trators iiave  mistaken  the  law,  which 
they  were  presumed  to  understand  ;  the 
decision  is  not  within  the  scope  of  their 
authority,  as  determined  by  tbe  submis- 
sion, and  is  for  that  reason  void.  But 
when  the  parties  have  expressly  or  by 
reasonable  implication,  submitted  the 
questions  of  law,  as  well  as  the  ques- 
tions of  fact,  arising  out  of  the  matter 
of  controversy,  the  decision  of  the  arbi- 
trators on  hotli  subjects  is  final.  It  is ' 
upon  the  principle  of  res  judicala,  on  the 


ground  that  the  matter  has  been  adjudg- 
ed by  a  tribunal  which  the  parties  have 
agreed  to  make  final,  and  a  tribunal  of 
last  resort  for  that  controversy  ;  and 
therefore  it  would  be  as  contrary  to 
principle,  for  a  court  of  law  or  equity 
to  rejudge  the  same  question,  as  for  an 
inferior  court  to  rejudge  tlie  decision  of 
a  superior,  or  for  one  court  to  overrule 
the  judgment  of  another,  where  the  law 
has  not  given  an  appellate  jurisdiction, 
or  a  revising  power  acting  directly  upon 
the  judgment  alleged  to  be  erroneous. — 
It  has  sometimes  been  niadc  a  question 
whether  the  court  will  not  set  aside  an 
award,  on  the  ground  of  mistake  of  the 
law,  when  the  arbitrator  is  not  a  pro- 
fessional man,  and  decline  inquiry  in- 
to such  mistake,  when  he  was  under- 
stood, from  his  profession,  to  be  well 
acquainted  with  the  law.  Some  of  the 
earlier  cases  may  have  countenanced 
this  distinction.  But  the  probability  is, 
that  this  distinction  was  taken  rather  by 
way  of  instance  to  illustrate  the  posi- 
tion, that  when  the  parties  intended  to 
submit  the  questions  of  law  as  well  as 
of  fact,  the  award  should  be  final,  but 
otherwise  not  ;  which  we  take  to  be  the 
true  principle.  But  we  think  the  more 
modern  cases  adopt  the  principle,  that 
inasmuch  as  a  judicial  decision  upon  a 
question  of  right,  by  whatever  forum  it 
is  made,  must  almost  necessarily  in- 
volve an  application  of  certain  rules  of 
law  to  a  particular  statement  of  facts, 
and  as  the  great  purpose  of  a  submis- 
sion to  arbitration  usually  is,  to  obtain 
a  speedy  determination  of  the  contro- 
versy, a  submission  to  arbitration  cm- 
braces  the  power  to  decide  questions  of 
law,  unless  that  presumption  is  rebutted 
by  some  exception  or  limitation  in  the 
submission.  We  are  not  aware  that 
there  is  any  thing  contrary  to  the  policy 
of  the  law  in  permitting  parties  Urns 
to  substitute  a  domestic  forum  for  the 
courts  of  law,  for  any  good  reason  sa- 
tisfactory to  themselves ;  and  having 
done  so,  there  is  no  hardship  in  hold- 
ing them  bound  by  the  result.  Vo- 
lenti non  Jit  injuria.  On  tlie  contrary, 
tliere  are  obvious  cases  in  which  it 
is  Iiighly  beneficial.  There  arc  many 
cases  where  tlie  parties  have  an  election 
of  forum  ;  sometimes  it  is  allowed  to 
the  plaintiff,  and  sometimes  to  the  dc- 


en.  III.] 


DEFENCES. 


215 


rectify  the  award,  or  do  any  thing  but  set  it  aside  if  the  error 
be  material,  or,  perhaps,  in  some  cases,  refer  the  case  back 
again  to  the  arbitrators.  («)     If  the  submission  authorize  the 


fendant.  It  may  depend  upon  the 
amount  or  the  nature  of  the  contro- 
Tcrsy,  or  the  personal  relations  of  one 
or  other  of  the  parties.  As  familiar  in- 
stances in  our  own  practice,  one  may- 
elect  to  proceed  in  tlie  courts  of  the 
United  States,  or  in  a  state  court ;  at 
law  or  in  equity  ;  in  a  higher  or  lower 
court.  In  either  case,  a  judgment  in 
one  is,  in  general,  conclusive  against 
proceeding  in  another.  A  very  com- 
mon instance  of  making  a  judgment 
conclusive  by  consent,  is  where  a  party 
agrees  in  consideration  of  delay,  or  some 
advantage  to  himself,  to  make  the  judg- 
ment of  the  court  of  common  pleas 
conclusive,  where,  but  for  such  consent, 
he  would  have  a  right  to  the  judgment 
of  the  higher  court.  But  where  the 
whole  matter  of  law  and  fact  is  submit- 
ted, it  may  be  open  for  the  court  to  in- 
quire into  a  mistake  of  law,  arising 
from  matter  apparent  on  the  award  it- 
self ;  as  where  the  arbitrator  has,  in 
his  award,  raised  the  question  of  law, 
and  made  his  award  in  the  alternative, 
without  expressing  his  own  opinion  ; 
or,  what  is  perhaps  more  common, 
where  the  arbitrator  expresses  his  opi- 
nion, and,  conformably  to  that  opinion, 
finds  in  favor  of  one  of  the  parties  ; 
but  if  the  law  is  otherwise,  in  the  case 
stated,  then  his  award  is  to  be  for  the 
other  party.  In  such  case,  there  is  no 
doubt,  the  court  will  consider  the  award 
conclusive  as  to  the  fact,  and  decide  the 
question  of  law  thus  presented.  Ano- 
ther case,  somewhat  analogous,  is  where 
it  is  manifest,  upon  the  award  itself, 
that  the  arbitrator  intended  to  decide 
according  to  law,  but  has  mistaken  the 
law.  Then  it  is  set  aside,  because  it  is 
manifest  that  the  result  does  not  con- 
form to  the  realjudgmentof  the  arbitra- 
tor. For  then,  whatever  his  autliority 
was  to  decide  the  questions  of  law,  if  con- 
troverted, according  to  his  own  judg- 
ment, the  case  supposes  that  he  intended 
to  decide  as  a  court  of  law  would  decide  ; 
and  therefore,  if  such  decision  would 
be  otherwise,  it  follows  that  he  intend- 
ed to  decide  the  other  way."  See  also 
Jones  V.  Boston  Mill  Corporation,  6 
Pick.  148  ;  Fuller  v.  Fenwick,  .3  C.  B. 
705  ;  Faviell  v.  Eastern  Counties  Kail- 
way  Co.,  2  Exch.  344  :   Kent  v.  Elstob, 


3  East.  18  ;  Kleinc  v.  Catara,  2  Galli- 
son,  61  ;  Greenough  v.  llolfe,  4  N.  H. 
357  ;  Johns  v.  Stevens,  3  Vermont, 
308;  Bliss  v.  Bobbins,  6  Vermont,  529; 
Wohlenberg  v.  Lageman,  6  Taunt.  254; 
Prentice  v.  Heed,  1  Taunt.  152  ;  Badg- 
er, in  re,  2  B.  &  Aid.  691  ;  Bouttilicr 
V.  Thick,  1  Dow.  &  Ryl.  366  ;  Kichard- 
son  V.  Nourse,  3  B.  &  Aid.  237  ;  Delver 
V.  Barnes,  1  Taunt.  48  ;  Cramp,  v. 
Symons,  1  Bing.  104  ;  Anonvmous,  1 
Chitty,  674. 

(n)  As  to  the  effect  of  a  mistake  in 
fact,  see  an  elaborate  review  of  the 
authorities  by  Ch.  Kent,  in  Underbill  v. 
Van  Cortlandt,  2  Johns.  Ch.  339.  See 
also  The  Boston  Water  Power  Co.  v. 
Gray,  6  Met.  131,  cited  supra,  where 
Shaw,  C.  J.,  said  : — "  Another  ground 
for  setting  aside  the  award  is  a  mistake 
of  fact,  apparent  upon  the  award  itself ; 
and  this  is  held  to  invalidate  the  award, 
upon  the  principle  stated  in  the  preced- 
ing proposition,  that  the  award  docs  not 
conform  to  the  judgment  of  the  arbitra- 
tors, and  the  mistake,  apparent  in  some 
material  and  important  particular,  shows 
that  the  result  is  not  the  true  judgment 
of  the  arbitrators.  The  mistake,  there- 
fore, must  be  of  such  a  nature,  so  affect- 
ing the  principles  upon  which  the  award 
is  based,  that  if  it  had  been  seasonably 
known  and  disclosed  to  the  arbitrators, 
if  the  truth  had  been  known  and  under- 
stood by  them,  they  would  probably 
have  come  to  a  different  result.  A 
familiar  instance  of  this  class  of  mis- 
takes, is  an  obvious  error  in  computa- 
tion, by  which  the  apparent  result,  in 
sums  or  times,  or  other  things  of  like 
kind,  is  manifestly  erroneous.  In  such 
case  it  is  clear  that  the  result  stated  is 
not  that  intended  ;  it  does  not  express 
the  real  judgment  of  the  arbitrators. 
The  class  of  cases  in  which  the  court 
will  set  aside  an  award,  upon  matter 
not  arising  out  of  the  submission  or 
award,  is,  where  there  is  some  corrup- 
tion, partiality,  or  misconduct  on  the 
part  of  the  arbitrators,  or  some  fraud  or 
imposition  on  the  part  of  the  party  at- 
tempting to  set  up  the  award,  by  means 
of  which  tlic  arbitrators  were  deceived 
or  misled.  In  neither  of  these  cases  is 
the  result  the  deliberate  and  fair  judg- 
ment of  the  judges  chosen  by  the  par- 


216 


THE   LAW   OF   CONTRACTS. 


[part  II. 


arbitrators  to  refer  questions  of  law  to  the  court,  this  may  be 
done ;  otherwise,  such  reference  would,  in  general,  either  be 
itself  declared  void,  or  would  have  the  effect  of  avoiding  the 
award,  because  it  prevented  it  from  being  certain,  or  final 
and  conclusive,  (o)  The  arbitrators,  by  a  general  submis- 
sion, are  required  to  determine  the  law  ;  and  only  a  decided 
and  important  mistake  could  be  shown  and  have  the  effect 
of  defeating  the  award  ;  it  has  been  said  that  only  a  mistake 
amounting  to  a  perverse  misconstruction  of  the  law  would 
have  this  effect;  certainly  a  very  great  power  is  given  to 
arbitrators  in  this  respect,  and  it  has  even  been  expressly  de- 
clared that  they  have  not  only  all  the  powers  of  equity  as 
well  as  of  law,  but  may  do  what  no  court  could  do,  in  giv- 
ing relief  or  doing  justice.  (;?) 


ties  ;  the  former  is  the  result  of  preju- 
dice uninfluenced  by  law  and  fact ;  the 
latter  may  be  a  true  judgment,  but  upon 
a  case  falsely  imposed  on  them  by  the 
fraud  of  a  .party.  Under  this  class  of 
cases,  where  the  award  may  be  set  aside, 
upon  matter  not  arising  out  of  the  sub- 
mission or  award,  another  was  stated  at 
the  trial ;  that  is,  where  the  arbitrators 
make  a  mistake  in  matter  of  fact,  by 
which  they  are  led  to  a  false  result. 
This  would  not  extend  to  a  case  where 
the  arbitrators  come  to  a  conclusion  of 
fact  erroneously,  upon  evidence  submit- 
ted to  and  considered  by  them,  although 
the  party  impeaching  the  award  should 
propose  to  demonstrate  that  the  infe- 
rence was  wrong.  This  would  be  the 
result  of  reasoning  and  judgment,  upon 
facts  and  circumstances  known  and  un- 
derstood ;  therefore  a  result  wliich,  upon 
the  principles  stated,  must  be  deemed 
conclusive.  But  the  mistake  must  be 
of  some  fact,  inadvertently  assumed 
and  believed,  which  can  now  be  shown 
not  to  have  been  as  so  assumed  ;  and  the 
principal  illustration  was  that  of  using  a 
false  weight  or  measure,  believing  it  to 
be  correct.  Suppose,  as  a  further  illus- 
tration, tliat  a  compass  had  been  used  to 
ascertain  the  bearings  of  points,  and  it 
should  be  afterwards  found,  that  by 
accident,  or  the  fraud  of  a  party,  a 
magnet  had  been  so  placed  as  to  dis- 
turb tlie  action  of  the  needle,  and  this 
wholly  unknown  to  tlie  arbitrators  ;  it 
is  not  a  fact,  or  the  inference  of  a  fact, 
upon  whicli  any  judgment  or  skill  Jiad 


been  exercised,  but  a  pure  mistake,  by 
which  their  judgment,  as  well  as  the 
needle,  had  been  swerved  from  the  true 
direction,  which  it  would  have  taken 
had  it  followed  the  true  law  understood 
to  govern  it.  One  test  of  such  a  mis- 
take is,  that  it  is  of  such  a  kind,  and  so 
obvious,  that  when  brought  to  the  no- 
tice of  the  arbitrators,  it  would  induce 
them  to  alter  the  result  to  which  they 
had  come  in  the  particular  specified. 
It  is  not  to  be  understood  that  such 
mistake  can  be  proved  only  by  the  tes- 
timony or  by  the  admission  of  the  arbi- 
trators. They  may,  from  various  causes, 
be  unable  to  testify,  or  may  not  be  able 
to  recollect  the  facts  and  circumstances 
sufficiently.  It  is  not,  therefore,  as 
matter  of  law,  confined  to  a  case  of 
mistake  admitted  or  proved  by  the  arbi- 
trators ;  but  it  must  be  of  a  fact  upon 
which  the  judgment  of  the  arbitrators 
has  not  passed  as  a  part  of  their  judi- 
cial investigation,  and  one  of  such  a 
nature,  and  so  proved,  as  to  lead  to  a 
reasonable  belief  that  they  were  misled 
and  deceived  by  it,  and  that  if  they  had 
known  the  truth,  they  would  have  come 
to  a  diiTerent  result." 

(o)  Sutton  V.  Horn,  7  S.  &  K.  228. 

(;))  The  power  of  arbitrators  to  dis- 
regard strict  principles  of  law,  and  to 
decide  upon  principles  of  equity  and 
good  conscience,  was  warmly  claimed 
by  S/ori/,  J.,  in  Klcine  v.  Catara,  2 
Gallison,  01, — "Under  a  general  sub- 
mission," said  he,  "  the  arbitrators  have 
rightfully  a  power  to  decide  on  the  law 


CII.  III.] 


DEFENCES. 


217 


Other  grounds  of  objection  to  an  award,  are  irregularity  of 
proceedings.  Thus,  a  want  of  notice  to  the  parties  furnishes 
a  ground  of  objection  to  the  award.  (5')     And  for  this  pur- 


and  the  fiict  ;  ami  an  error  in  either  re- 
spect ought  not  to  be  the  subject  of  com- 
plaint by  either  party,  for  it  is  their  own 
choice  to  be  concluded  by  the  judgment 
of  the  arbitrators.  Besides,  under  such 
a  general  submission,  the  reasonable 
rule  seems  to  be,  that  the  referees  arc 
not  bound  to  award  upon  the  mere  dry 
principles  of  law  applicable  to  the  case 
before  them.  They  may  decide  upon 
principles  of  cipiity  and  good  conscience, 
and  may  make  their  award  ex  cequo  et 
bono.  We  hold,  in  this  respect,  the  doc- 
trine of  Lord  Talbot  in  tlie  South  Sea 
Company  v.  Bumbstead,  of  Lord  Thurlow 
in  Knox  v.  Simonds,  of  the  King's 
Bench  in  Ainslie  v.  Goff,  and  of  the 
Common  Pleas  in  Delver  v.  Barnes. 
If,  therefore,  under  an  unqualified  sub- 
mission, the  referees,  meaning  to  take 
npou  tliemselvcs  the  whole  responsi- 
bility, and  not  to  refer  it  to  the  court, 
do  decide  differently  from  what  the 
court  would  on  a  point  of  law,  the 
award  ought  not  to  be  set  aside.  If, 
however,  the  referees  mean  to  decide 
according  to  law,  and  mistake,  and  re- 
fer it  to  the  court  to  review  their  deci- 
sion, (as  in  all  cases,  where  they  spe- 
cially state  tlie  principles,  on  which  they 
have  acted,  they  are  presumed  to  do,) 
in  such  cases  the  court  will  set  aside  the 
award,  for  it  is  not  the  award  which  the 
referees  meant  to  make,  and  they  acted 
under  a  mistake.  On  the  other  hand, 
if  knowing  what  the  law  is,  they  mean 
not  to  be  bound  by  it,  but  to  decide, 
wliat  in  equity  and  good  conscience 
ought  to  be  done  between  the  parties, 
their  award  ought  to  be  supported,  al- 
though the  whole  proceedings  should 
be  apparent  on  the  face  of  the  award. 
And  this,  in  our  opinion,  notwithstand- 
ing some  contrariety,  is  the  good  sense 
to  be  extracted  from  the  authorities. 
In  Morgan  v.  Mather,  Lord  Lough- 
borough lays  it  down  as  clear,  that  cor- 
ruption, misbehavior,  or  excess  of  power, 
are  the  only  grounds  for  setting  aside 
awaixis ;  and  although  in  the  same  case 
Mr.  Commissioner  Wilson  says,  that 
arbitrators  cannot  award  contrary  to 
law,  i)ccause  that  is  beyond  their  pow- 
er, for  the  parties  intend  to. submit  to 
them  only  the  legal  consequences  of  their 

VOL.    II.  19 


transactions  and  agreements ;  yet  this 
reasoning  is  wholly  unsatisfactory,  not 
only  from  its  begging  the  question,  but 
from  its  being  in  direct  opposition  to 
very  high  authority.  If,  in  the  case  be- 
fore the  court,  the  referees  had  made  a 
general  award,  without  any  specifica- 
tion of  the  reasons  of  their  decision,  it 
would  have  deserved  very  grave  consi- 
deration, whether  we  could,  by  collateral 
evidence,  have  examined  into  the  exist- 
ence of  any  errors  of  law.  We  are  not 
prepared  to  say  that  such  a  course 
would  be  proper,  unless  the  submission 
were  restrained  to  that  effect,  or  mis- 
behavior were  justly  imputed  to  the  re- 
ferees. But  here  the  referees  have  ex- 
pressly laid  the  grounds  of  their  decision 
before  us,  and  have  thereby  submitted 
it  for  our  consideration.  This  course 
is  not  much  to  be  commended.  Arbi- 
trators may  act  with  perfect  equity  be- 
tween the  parties,  and  yet  may  not  al- 
ways give  good  reasons  for  their  deci- 
sions ;  and  a  disclosure  of  their  reasons 
may  often  enable  a  party  to  take  advan- 
tage of  a  slight  mistake  of  law,  which 
may  have  very  little  bearing  on  the 
merits.  A  special  award,  therefore,  is 
very  perilous;  but  when  it  is  once  be- 
fore the  court,  it  must  stand  or  fall  by 
its  intrinsic  correctness,  tested  by  legal 
principles." 

(7)  Paschal  v.  Terry,  Kelynge,  132  ; 
Rigden  v.  IMartin,  6  Harr.  &  J.  40.3  ; 
Falconer  v.  Montgomery,  4  Dallas,  232 ; 
Lutz  V.  Linthicum.  8  Peters,  178  ;  Peters 
V.  Ncwkirk,  G  Cow.  103  ;  Eivers  v. 
Walker,  1  Dallas,  81  ;  Webber  v.  Ives, 
1  Tyler,  441 ;  Craig  v.  HawkJns,  Har- 
din, 46.  In  Crowell  v.  Davis,  12  Met. 
293,  C.  and  D.  agreed  to  submit  all  dis- 
puted claims  between  them  to  the  final 
award  of  B.,  and  to  abide  Ijy  his  deci- 
sion ;  and  that  if  B.  sliould  decline  to 
act  alone  as  referee,  he  might  select  one 
or  two  other  referees  to  act  with  him  ; 
and  that  if  he  should  decline  altogether, 
the  matters  should  be  referred  to  such 
j)erson  or  jiersons  as  he  should  select. 
B.  declined  to  act,  and  appointed  G.,  II. 
and  I.  as  referees,  on  the  23d  of  ISIarch, 
of  which  appointment  C.  and  D.  had 
immediate  notice,  and  G.,  as  chairman 
of  said  referees,  called  on  D.,  and  in- 


218 


TUE   LAW   OF    CONTRACTS. 


[part  II. 


pose  it  is  not  necessary  that  the  submission  provide  for  giv- 
ing such  notice,  because  a  right  to  notice  springs  from  the 
agreement  to  submit,  (r)  But  this  rule  is  not  of  universal 
application,  for  there  may  be  cases  where  all  the  facts  have 
been  agreed  upon  and  made  known  to  the  arbitrators,  Q.n^ 
where  the  case  docs  not  depend  upon  the  evidence,  and  no 
hearing  is  desired,  in  which  notice  would  be  unnecessary,  (s) 
Another  instance  of  irregularity  is  the  omission  to  examine 
witnesses,  or  an  examination  of  them  when  the  parties  were 
not  present,  and  their  absence  was  for  good  cause,  (^)  or  if 
either  of  the  parties  had  concealed  material  circumstances, 
for  this  would  be  fraud.     So  if  the  arbitrators,  in  case  of  dis- 


formed  him  that  the  referees  had  agreed 
to  hear  the  parties  in  the  afternoon  of 
that  (\aj.  U.  told  G.  that  he  could  not 
attend  to  the  husiness  on  that  day  ;  and 
G.  told  D.  that  H.  and  I.  could  not  at- 
tend at  any  other  time,  and  that  other 
referees  would  have  to  be  appointed  in 
their  place,  to  ■which  D.  made  no  objec- 
tion or  reply.  On  the  next  day,  G. 
gave  notice  to  D.  that  tlie  hearing  would 
be  on  the  27th  of  Marcli,  at  a  certain 
place.  On  the  said  27th  of  Marcli  II. 
and  I.  were  not  present  at  the  appoint- 
ed place,  and  B.,  at  the  request  of  C. 
and  G.,  appointed  K.  and  L.  as  referees 
in  their  stead.  G.,  K.  and  L.  thereupon 
proceeded  to  hear  C,  in  the  absence  of 
D.,  and  made  an  award  in  C.'s  favor. 
Held,  that  D.  was  not  bound  by  the 
award. 

(?•)  Elmcndorf  v.  Harris,  2.3  Wend. 
628  ;  Peters  i'.  Newkirk,  G  Cowen,  103. 

(s)  Miller  v.  Kennedy,  3  Rand.  2. 
Notice  to  sureties  on  the  submission 
bond  is  not  necessary.  Farmer  v.  Stew- 
art, 2  N.  II.  R.  97.  In  Ranney  v.  Ed- 
wards, 17  Conn.  309,  A.  and  B.  having 
unsettled  accounts  between  thcni,  sub- 
mitted such  accounts  to  tlie  arbitrament 
of  C.  and  1).  ;  and  in  case  they  should 
not  agree,  they  were  autiiorized  to  select 
a  third  person,  who,  either  individually, 
or  in  conjunction  with  the  other  two, 
should  determine  the  cause.  C.  and 
U.,  after  liearing  the  parties,  and  exam- 
ining their  books  and  accounts,  were 
unalile  to  agree  upon  a  part  of  tlie  mat- 
ters in  controversy  ;  and  tiiercupon  they 
selected  E.  as  a  third  person  to  act  with 
them  in  making  the  award.  C.  and  D. 
then  stated  to  E.  the  claims,  accounts 


and  evidence  of  the  parties,  relative  to  the 
matters  about  which  they  disagreed ;  af- 
ter which  C,  D.  and  E.  madetheiraward 
in  favor  of  B.  A.  and  B.  had  no  notice 
of  the  appointment  of  E.,  until  after  the 
publication  of  the  award  ;  nor  htid  they, 
or  either  of  tliem,  any  liearing  before 
the  arbitrators,  after  such  appointment ; 
but  C.  and  D.  in  omitting  to  give  such 
notice,  and  in  making  their  statement 
to  E.,  acted  under  a  sense  of  duty,  and 
were  not  guilty  of  any  fraud,  conceal- 
ment, or  partiality.  On  a  bill  in  chan- 
cery, brought  by  A.  against  B.,  to  have 
the  award  set  aside,  it  was  held,  Church, 
J.,  dissenting,  that  no  sufficient  cause 
was  shown  for  such  an  interference, 
and  tlie  bill  was  dismissed.  And  semhle 
that  where  the  submission  is  to  two 
arbitrators,  with  power,  in  case  of  dis- 
agreement, to  select  a  third  person  to 
act  conjointly  with  them,  the  necessity 
of  a  re-hearing,  in  the  absence  of  any- 
express  request  by  one  or  both  of  the 
parties,  is  a  matter  resting  in  the  sound 
discretion  of  the  arbitrators ;  but  if  such 
request  be  made,  it  is  their  duty  to  com- 
ply with  it.  See  further,  Rigden  ?.-. 
Martin,  6  II.  &  J.  406  ;  Emery  v.  0\v- 
ings,  7  Gill,  488  ;  Bullitt  v.  Musgravc, 
3  Gill,  31  ;  Cobb  v.  Wood,  32  Maine, 
455  ;  McKinney  v.  Rage,  Id.  513.  And 
the  right  to  notice  may  lie  waived. 
Graham  v.  Graham,  9  Barr.  254  ;  Hard- 
ing r.  Wallace,  10  B.  Monroe,  5.30. 

{I)  So  an  examination  of  the  books 
of  one  ])arty  in  the  absence  of,  and  with- 
out notice  to  the  other  party,  and  with- 
out proof  of  the  correctness  of  the  en- 
tries therein,  will  vitiate  the  award. 
Emery  v.  Owings,  7  Gill,  488. 


en.  III.]  DEFENCES.  219 

agreement,  were  authorized  to  choose  an  umpire,  but  drew 
lots  which  of  them  should  choose  him.  (m)  But  it  was  in 
one  case  held  enough  that  each  arbitrator  named  an  umpire, 
and  lots  were  drawn  to  decide  which  of  these  two  should  be 
taken,  because  it  might  be  considered  that  both  of  these  men 
were  agreed  upon,  (v)  And  if  an  umpire  be  appointed  by- 
lot,  or  otherwise  irregularly,  if  the  parties  agree  to  the  ap- 
pointment, and  confirm  it  expressly,  or  impliedly  by  attend- 
ing before  him,  with  a  full  knowledge  of  the  manner  of  the 
appointment,  this,  it  seems,  covers  the  irregularity,  (w) 


SECTION  VII. 

OF  A    RELEASE. 

A  release  is  a  good  defence  ;  whether  it  be  made  by 
the  creditor  himself,  or  result  from  the  operation  of  law.  [x) 
No  special  form  of  words  is  necessary,  if  it  declare  with 
entire  distinctness  the  purpose  of  the  creditor  to  discharge 
the  debt  and  the  debtor.  And  if  it  have  necessarily  this 
effect,  although  the  purpose  is  not  declared,  it  will  operate 
as  a  release  ;  as  in  ease  of  a  covenant  never  to  sue,  (//)  or 
not  to  sue  without  any  limitation  of  time  ;  (z)  whereas  if  a 
covenant  not  to  sue  for  a  certain  time  be  broken  by  an  action, 

{u)  Harris  v.  Mitchel,  2  Vern.  485.  (x)  A   release   under   seal  is  a  good 

(v)  Neale  v.  Ledger,  16  East,  51.  But  discharge  of  a  judgment.     The  party  is 

sec   contra    In  re    Casell,    9   B.    &    C.  not  driven  to  an  audita  querela.     The 

G24  ;   Tunno  v.  Bird,  5  B.  &  Ad.  488  ;  rule  that  a  discharge  of  a  contract  must 

James  v.  Attwood,  7  Scott,  841 ;  Ford  be  of  as  high  a  nature  as  the  contract 

t'.  Jones.  3  B.  &  Ad.  248.  itself,   does   not  apply   to   such    cases. 

\ic)   Taylor   v.   Backliouse,   2   Eng.  Barker  v.  St.  Quintin,  12  M.  W.  441  ; 

Law  &  Eq.  R.  184;    Tunno  ?•.  Bird,  5  Co.  Litt.  291  a.;   Shep.   Touch.  Pres- 

B.  &   Ad.   488.     The  aecpiicsccnce  in  ton's  Ed.  p.  322,  323. 

such  a  mode  of  appointment,  will  not  (y)  Cuyler  v.  Cuyler,  2  Johns.  186  ; 

bind  a  party  however,  unless  made  with  Deux  v.  Jeffcrics,  Cro.  Eliz.  352  ;  2  "Wms. 

full  knowledge  of  all  the  facts.     Wells  Saund.  47  s,  n.  (1);  Bac.  Abr.  tit.  Re- 

V.  Cooke,  2  B.  &  Aid.  218  ;  Jamieson,  lease,  (A)  2  ;   Jackson  v.  Stackhouse,  1 

In  re,  4  Ad.  &  Ell.  945;    Greenwood,  Cow.    122.     And  see   AVhite  r.   Ding- 

In  re,  9  Ad.  &  Ell.  699  ;    Ilodson,  In  ley,   4    Mass.    433  ;    Sewall    v.    Spar- 

7-e,  7  Dowl.  569.     The  case  of  Ford  i-.  row,    16   Mass.   24;   Reed  v.   Shaw,  1 

Jones,  3  B.  &-Ad.  248,  holding  that  the  I51ackf.  245  ;    G.arnett  v.  Macon,  6  Call, 

appointment  of  an  umpire  by  lot,  even  308. 

by  consent  of  parties,  is  had,  is  probably  (z)  Clark  r.  Russel,  3   Watts,  213  j 

not  law  ;   consensus  toll'd  errorem.     See  Hamaker  r.  Eberly,  2  Binn.  510. 
Christman  i'.  Moran,  9  Barr,  487. 


220 


THE   LAW   OF   CONTRACTS. 


[part  li- 


the covenant  is  no  bar,  and  the  covenantee  has  no  remedy 
but  on  the  covenant,  (a)  By  some  courts  this  last  rule  is 
held  not  to  apply  to  actions  of  assumpsit,  a  covenant  not  to 
sue  for  a  time  certain,  being  there  a  bar  during  that  time,  (b) 
So  if  the  covenant  not  to  sue  for  a  time,  gives  a  forfeiture  in 
case  of  breach,  it  is  said  to  be  a  bar.  (c)  And  a  bond  or 
covenant  to  save  harmless  and  indemnify  the  debtor  against 
his  debt,  is  a  release  of  the  debt,  (d) 

A  release,  strictly  speaking,  can  operate  only  on  a  present 
right,  because  one  can  give  only  what  he  has,  and  can  only 
promise  to  give  what  he  may  have  in  future.  But  where 
one  is  now  possessed  of  a  distinct  right,  which  is  to  come  in- 
to effect  and  operation  hereafter,  a  release  in  words  of  the 
present,  may  discharge  this  right,  (e) 

The  whole  of  a  release,  as  of  all  legal  instruments,  must  be 
considered ;  and  if  it  be  general  in  its  terms,  it  may  be  con- 
trolled and  limited  in  its  effects  by  the  limitation  in  the 


(a)  Thimbleby  v.  Barron,  3  M.  &  W. 
210;  Dow  V.  Tuttle,  4  Mass.  414; 
Chandler  v.  Hcrrick,  19  Johns.  129  ; 
Berry  v.  Bates,  2  Blackf.  118;  Aloff 
V.  Scnmshavv,  2  Salk.  573;  5  Bac.  Abr. 
tit.  ■Release  (A.)  2  ;  Hoffman  v.  Brown, 
1  Halst.  429  ;  Deux  v.  Jcfteries,  Cro. 
Eliz.  3.')2  ;  Perkins  v.  Gilman,  8  Pick. 
229  ;  Gibson  v.  Gibson,  15  Mass.  112  ; 
PuUam  V.  Valentine,  11  Pick.  159  ; 
Winans  v.  Huston,  6  Wend.  471.  See 
Pearl  r.  Wells,  6  WeucL  291  ;  Guard 
V.  Whiteside,  13  111.  7.  And  where 
two  arc  jointly  and  severally  bound,  a 
covenant  not  to  sue  one,  does  not  amount 
to  a  release  of"  the  other.  Lacy  v.  Ky- 
naston,  12  Mod.  548,  551  ;  Ward  v. 
rTohnson,  G  Munf.  G  ;  Tuckcrnian  v. 
Newhall,  17  Mass.  581  ;  Uutton  v.  Eyre, 
G  Taunt.  289.  And  sec  ante,  vol.  1,  p. 
24,  n.  (/)). 

[h)  Clopper  v.  Union  Bank,  7  H.  & 
J.  92.  Srd  qucere.  And  see  Dow  i'. 
Tuttle,  4  Mass.  414,  and  cases  supra. 

(c)  21  H.  7,  30,  pi.  10  ;  White  v. 
Dingley,  4  Mass.  438.  And  sec  Rol. 
Abr.  tit.  E.Ktinguishment,  (L),  pi.  2  ; 
Lee  r.  Wood,  J.  Bridg.  117;  Pearl  v. 
Wells,  G  Wend.  295. 

(d)  Clark  r.  Bush,  3  Cowcn,  151. 

(e)  Pierce  v.  Parker,  4  Met.  80,  where 
the  authorities  on  this  subject  arc  criti- 


cally examined  by  Uuhhard,  J.,  who 
thus  remarks  : — "  From  the  best  exami- 
nation I  have  been  able  to  give  to  the 
question  before  us,  I  come  to  this  con- 
clusion, that  while  a  possibility  merely 
is  not  the  subject  of  a  release,  yet  that 
in  all  cases  where  there  is  an  exist- 
ing obligation  or  contract  between  par- 
ties, although  such  obligation  or  con- 
tract is  executory  and  dependent  also 
upon  contingencies  that  may  never  hap- 
pen, still,  if  the  party  in  whose  favor 
such  obligation  or  contract  is  made,  or 
who  is  liable,  by  force  of  it,  to  suffer 
damage  if  it  is  not  performed  by  the 
other  when  the  contingency  happens, 
shall  execute  a  release  of  all  claims  and 
demands,  actions  and  causes  of  action, 
&c.,  correct  in  point  of  form,  and  hav- 
ing at  the  time  of  executing  the  release 
such  obligation  or  contract  in  view,  as 
one  of  the  subjects  upon  which  the  re- 
lease shall  operate,  then  such  release 
shall  be  held  as  a  good  and  valid  bar 
to  any  suit  which  may  be  afterwards 
brought  upon  such  obligation  or  con- 
tract, or  for  money  had,  received,  or 
paid,  upon  the  future  happening  of  the 
contingency,  in  consequence  of  wliich 
the  plaintiir  sustains  damage,  and  but 
for  sucli  release  would  have  had  a  per- 
fect ri^ht  of  action." 


en.  III.] 


DEFENCES. 


221 


recital.  (/)  And  it  may  expressly  extend  to  only  a  part  of  a 
claim  or  debt,  (g)  But  if  a  plaintiff  is  met  by  a  general 
release  under  his  seal  to  the  defendant,  he  cannot  set  up  an 
exception  by  parol,  (h)  And  where  the  release  is  general 
it  can  not  be  limited  or  qualified  by  extrinsic  evidence,  al- 
though a  receipt  may  be.  (?) 

A  release  of  a  debt  should  be  made  by  him  who  has  a 
legal  interest  in  it ;  and  if  made  by  one  who  has  not  such  an 
interest,  but  is  beneficially  interested,  and  is  not  the  plaintiff 
of  record,  though  this  may  for  many  purposes  release  the 
debt,  it  has  been   held  that  it  cannot  defeat  the  action  at 


(/)  In  Ricli  V.  Lord,  18  Pick.  325, 
S/iau\  C.  J.,  said,  "  It  is  now  a  general 
rule  in  construing  releases,  especially 
where  the  same  instrument  is  to  be  exe- 
cuted !)}•  various  persons,  standing  in 
various  relations,  and  having  various 
kinds  of  claims  and  demands  against 
the  releasee,  tiiat  general  words,  though 
the  most  broad  and  comprehensive,  are 
to  be  limited  to  particular  demands, 
where  it  manifestly  appears,  by  the  con- 
sideration, by  the  recital,  by  the  nature 
and  circumstances  of  the  several  de- 
mands, to  one  or  more  of  which  it  is 
proposed  to  apply  the  release,  that  it 
was  so  intended  to  be  limited  by  the 
parties.  And  for  the  purpose  of  ascer- 
taining that  intent,  every  part  of  the 
instrument  is  to  be  considered.  As 
where  general  words  of  release  arc  im- 
mediately connected  with  a  proviso 
restraining  their  operation.  Solly  v. 
Forbes,  2  Brod.  &  Bing.  38.  So  a  re- 
lease of  all  demands,  then  existing,  or 
which  should  thereafter  arise,  was  held 
not  to  extend  to  a  particular  bond, 
which  was  considered  not  to  be  with- 
in the  recital  and  consideration  of  the 
assignment,  and  not  within  the  intent 
of  the  parties.  Payler  v.  Homersham, 
4  Maule  &  Selvv.  423.  So  where  it  is 
recited  that  various  controversies  are 
subsisting  between  the  parties,  and  ac- 
tions pending,  and  that  it  had  been 
agreed  that  one  should  pay  tlic  other  a 
certain  sum  of  money,  and  that  they 
should  mutually  release  all  actions  and 
causes  of  action,  and  thereupon  such 
releases  were  executed,  it  was  held,  that 
tliough  general  in  terras,  the  releases 
were  qualified  by  the  recital  and  limited 
to  actions  pending.  Simons  v.  John- 
son, 3  Barn.  &  Adolph.  175  ;  Jackson 

19* 


V.  Stackhouse,  1  Cowen,  126.  So  it 
has  been  held  in  Massachusetts,  that 
where  upon  the  receipt  of  a  propor- 
tionate share  of  a  legacy  given  to  ano- 
ther, the  person  executed  a  release  of 
all  demands  under  the  will,  it  was  held 
not  to  apply  to  another  and  distinct 
legacy  to  the  person  himself.  Lyman 
V.  Clark,  9  Mass.  R.  235."  And  see 
Learned  v.  Bellows,  8  Verm.  79.  See 
also  ante,  pp.  13,  14,  and  notes. 

(g)  2  Rol.  Abr.  413,  tit.  release,  (H), 
pi.  1. 

(h)  Brooks  V.  Stuart,  9  Ad.  &  El. 
854.  This  was  assumpsit  by  indorsees 
against  the  maker  of  a  promissory  note. 
Plea,  that  the  promise  was  a  joint  and 
several  one  by  defendant  and  A.,  to 
whom  one  of  the  plaintitls  executed  a 
release  under  seal.  Replication,  that 
the  release  was  executed  at  the  request 
of  defendant,  who  afterwards,  and  while 
the  note  was  unpaid,  in  consideration  of 
such  release,  ratified  his  promise,  and 
promised  to  remain  liable  to  plaintiffs 
for  the  amount  of  the  note.  Held,  bad, 
because  it  set  up  a  parol  exception  to 
a  release  under  seal.  And  sec  ante,  vol. 
1.  p.  23,  and  n.  (/). 

'  ((■)  Baker  v.  Dewey,  1  B.  &  C.  704. 
But  an  agi'cement  under  seal,  which 
compromises  a  suit,  does  not  prevent 
either  party  from  setting  up  and  prov- 
ing a  parol  undertaking,  that  one  of  the 
parties  should  pay  tiie  costs  that  had 
accrued.  Sucli  an  undertaking  docs 
not  contradict  or  vary  the  written  agree- 
ment, but  is  distinct  and  independent  of 
it.  ^Rlorancy  v.  Quarles,  1  McLean, 
194.  That  a  simple  receipt  may  be 
contradicted  or  varied  by  extrinsic  evi- 
dence, see  ante,  p.  67,  and  notes. 


222 


THE   LAW   OF   CONTRACTS. 


[part  II. 


law.  (J)  If  the  release  be  made  by  the  trustee,  or  other 
party  having  the  legal  interest,  it  can  be  set  aside  if  to  the 
prejudice  of  the  party  beneficially  interested,  and  made  with- 
out his  assent,  (k) 

The  release  may  be  only  by  operation  of  law ;  but  this 
also  is  grounded  upon  the  presumed  intent  of  the  parties. 
Thus,  at  common  law,  (varied  by  statutory  provisions,)  a 
creditor  who  appoints  his  debtor  his  executor,  cancels  the 
debt  ;  (/)  unless  the  debtor  refuses  to  accept  the  office  ;  this 
he  may  do,  and  then  he  does  not  accept  the  release,  (m)  So 
if  the  parties  intermarry,  (n)  Or  if  the  creditor  receive  from 
the  debtor  a  higher  security,  as  a  bond  for  a  simple  contract 
debt;  but  the  higher  security  may  be  given  only  as  collateral 
to  the.  original  debt,  which  then  remains  in  full  force,  (o) 
Nor  will  a  specialty  security  extinguish  a  simple  contract 
debt,  unless  it  be  coextensive  therewith,  {p) 


(j)  Quick  V.  Ludborrovr,  3  Bulst. 
29,  where  A.  covenanted  with  B.  tliat 
C.  should  pay  B.  and  D.  a  certain  sum 
per  year,  as  an  annuity.  D.  married, 
and  her  husband  released  the  payment. 
This  was  held  no  bar  to  the  action  by 
B.  to  enforce  the  covenant.  And  sec 
Walmesley  v.  Cooper,  11  Ad.  &  EI. 
216,  where  A.  covenanted  with  B.  not 
to  sue  him  for  any  debt  due  from  B.  to 

A.  Held,  no  bar  to  an  action  against 

B.  by  A.  and  C,  for  a  debt  due  them. 
{k)  See  ante,  vol.  I,  p.  22  and  notes, 

and  onfe,  p.  129,  n.  (^).  And  see  fur- 
ther, Jones  V.  Herbert,  7  Taunt,  421  ; 
Furnival  v.  Weston,  7  J.  B.  Moore,  35G  ; 
Arton  V.  Booth,  4  J.  B.  Moore,  192  ; 
Herbert  v.  Pigott,  2  Cr.  &  Mees.  384; 
Crook  V.  Stephen,  5  Bing.  N.  C  688  ; 
Eastman  v.  Wright,  6  Pick.  323  ;  Bor- 
ing V.  Brackett,  3  Pick.  403. 

(/)  Cheetham  v.  Ward,  1  B.  &  P. 
630.  And  see  20  Edw.  IV.,  17,  pi.  2; 
21  Edw.  IV.,  3,  pi.  4  ;  Woodward  v. 
Darcy,  Plowd.  184 ;  Wankford  r.  Wank- 
ford,  1  Salk.  299  ;  Co.  Litt.  264  b,  n. 
(1^  ;  Dorchester  v.  Webb,  Sir  W.  Jones, 
345 ;  Rawlinson  v.  Shaw,  3  T.  II.  557  ; 
Frcakley  v.  Fox,  9  B.  &  C.  136  ;  AUin 
V.  Shadburne,  1  Dana,  68.  But  sec 
contra  in  this  country,  Winship  v.  Bass, 


12  Mass.  199.  And  see  Ritchie  v.  Wil- 
liams, 11  Mass.  50;  Kinney  v.  Ensign, 
18  Pick.  232  ;  Stevens  v.  Gaylord,  11 
Mass.  267  ;  Ipswich  Man.  Co.'r.  Story, 
5  Met.  313;  Pusey  v.  Clemson,  9  S- & 
R.  204. 

(m)  Dorchester  v.  Webb,  Sir  W. 
Jones,  345.  And  see  cases  cited  in  pre- 
ceding note. 

(«)  Cage  V.  Acton,  1  Ld.  Ravm.  515 ; 
Cannel  v.  Buckle,  2  P.  Wins.  242  ; 
Smith  V.  Stafford,  Noy,  26,  Hob.  216. 
But  a  bond  conditioned  for  the  pay- 
ment of  money  after  the  obligors  death, 
made  to  a  woman  in  contemplation  of 
the  obligor's  marrying  her,  and  intend- 
ed for  her  benefit  if  she  should  survive, 
is  not  released  by  their  marriage.  And 
if  the  marriage  be  pleaded  in  bar  to  an 
action  of  debt  on  the  bond  against  the 
heir  of  the  obligor,  a  replication  stating 
the  purposes  for  which  the  bond  was 
made  will  be  good,  for  they  are  con- 
sistent with  the  bond  and  condition. 
Milbourn  v.  Ewart,  5  T.  R.  381. 

(o)  Twopenny  v.  Young,  3  B.  &  C. 
208  ;  Drake  v.  IVIitchell,  3  East,  251  ; 
Solly  V.  Forbes,  2  B.  &  B.  38. 

{]))  Jones  V.  Johnson,  3  W.  &  S.  276. 
And  sec  Twopenny  v.  Young,  3  B.  & 
C.  208. 


en.  III.] 


DEFENCES. 


223 


SECTION  VIII. 


OF   ALTERATION. 


An  alteration  of  a  contract  is  said  to  operate  a  discharge 
of  it.  If  the  alteration  be  by  a  stranger,  it  avoids  an  instru- 
ment if  it  be  material,  and  the  original  words  cannot  be  cer- 
tainly restored,  on  the  ground  that  it  is  no  longer  the  instru- 
ment of  the  parties,  {q)     If  the  alteration  be  made  by  a 


{q)  Formerly   a  material  alteration 
by  a  stranger  was  held  to  render  the 
instrument    void,   notwithstandin<;   the 
original  words  might  be  restored.   Thns, 
in  Pigot's  Case,   11  Eep.  27,  it  was  re- 
solved  that  when  any  deed  is   altered 
in  a  point  material,  by  the  plaintiff  him- 
self,  or  by  any  stranger,   without   the 
privity  of  the   obligee,  be  it  by  inter- 
lineiition,  addition,  rasing,  or  by  draw- 
ing of  a  pen  through  a  line,  or  through 
the   midst  of  any  material  word,  that 
the  deed  thereby  becomes  void  :  as  if  a 
bond  is  to  be  made  to  the  sheriff  for 
appearance,  &c.,  and  in  the  bond  the 
sheriff's  name  is  omitted,  and  after  the 
delivery  thereof,  his  name  is  interlined, 
either  by   the   obligee    or  a  stranger, 
without  his  privity,  the  deed  is  void : 
So  if  one  makes  a  bond  of  £10,  and 
after  the  sealing  of  it  another  £10  is 
added,  which  makes  it  £20,  the  deed 
is  void  :  so  if  a  bond  is  rased,  by  which 
the  first  word  cannot  be  seen,  or  if  it  is 
drawn  with  a  pen  and  ink  through  the 
word,  although  the  first  word  is  legible, 
yet  the  deed  is  void,  and  shall  never 
make  an  issue,  whether  it  was  in  any 
of  these  cases  altered  by  the  obligee 
himself,  or  by  a  stranger  without  his 
privity.     Markham    v.  Gonaston,  Cro. 
Eliz.  G26,  is  to  the  same  effect.     And 
such  is  still  held  to  be  the  law  by  all 
the  common  law  courts  in  England,  as 
appears   by   the   case  of  Davidson  v. 
Cooper,  11   M.  &  W.  778,  13  id.  343. 
That  was  an  action  of  assumpsit  on  a 
guarantee.      The    defendants    pleaded 
that  after  the  guarantee  or  agreement 
in  writing  liad  been  made  and  signed, 
and  after  the  defendants  had  promised 
as   in   the  declaration  mentioned,  and 
after  the  guarantee  had  been  delivered 
to  the  plaintiff,  and  while  it  was  in  his 
hands,  it  was,  without  the  knowledge  or 
conseut  of  the  defendants,  altered  in  a 


material  particular  by  some  person  to 
the  defendants  unknown,  and  its  nature 
and  effect  materially  changed,  by  such 
unknown  person  affixing  a  seal  by  or 
near  to  the  signature  of  the  defendants, 
so  as  to  make  it  purport  to  be  sealed 
by  the  defendants,  and  to  be  the  deed 
of  the  defendants  ;  by  reason  of  which 
alteration  the    said   guarantee   became 
void  in  law.     The  plaintiff  took  issue 
upon  this   plea,    and   upon  the  trial  a 
verdict  was   found   for   the   defendant. 
Afterwards,   upon   a   motion   to   enter 
judgment  for  the  plaintiff  7ion  obstante 
veredicto,    on   the   ground   that   it   was 
not  stated  in  the  plea  that  the  altera- 
tion was  made  by  the  plaintiff,  or  with 
his  privity.  Lord  Abinger,  in  delivering 
the  judgment  of  the  Court  of  Exchequer, 
said : — "  There  is  no  doubt  but  that,  in 
the  case  of  a  deed,  any  material  altera- 
tion, whether  made  by  the  party  hold- 
ing it  or  by  a  stranger,  renders  the  in- 
strument altogether  void  from  the  time 
when   such   alteration   is  made.     This 
was  so  resolved  in  Pigot's   case,  and 
though  it  was  contended  in  argument, 
that  the  rule  has  been  relaxed  in  modern 
times,  we  are  not  aware  of  any  autho- 
rity for  such  a  proposition,  when  the 
altered  deed  is  relied  on  as  the  founda- 
tion of  a  right  sought  to  be  enforced. 
The  case  is  different,  where  the  deed  is 
produced  merely  as  proof  of  some  right 
or  title  created  by,  or  resulting  from,  its 
havinrj  been  executed;  as  in  the  case  of 
an  ejectment   to  recover  lands  which 
have  been  conveyed  by  lease  and  re- 
lease, or  now  by  release  only.     There, 
what  the  plaintiff  is  seeking  to  enforce, 
is  not,  in  strictness,  a  right  under  the 
lease  and  release,  but  a  right  to  the  pos- 
session of  the  land,  resulting  from  the 
fact  of  tlfe  lease  and  release  having  been 
executed.     The  moment  after  their  exe- 
cution the  deeds  become  valueless,  so 


224 


THE   LAW    OF   CONTRACTS. 


[part  II. 


party,  it  is  said  so  far  to  avoid  the  instrument  that  he  can 


far  as  they  relate  to  the  passing  of  the 
estate,  except  as  aflbrding  evidence  of 
the  fact  that  they  were  executed.  If  the 
effect  of  the  execution  of  such  deeds 
■was  to  create  a  title  to  the  land  in  ques- 
tion, that  title  cannot  be  affected  by  tlie 
subsequent  alteration  of  the  deeds  ;  and 
the  i)rinciples  laid  down  in  Pigot's  case 
would  not  be  applicable.  But  if  the 
part}'  is  not  proceeding  by  ejectment  to 
recover  the  land  conveyed,  but  is  suing 
the  grantor  under  his  covenants  for 
title  or  other  covenants  contained  in  the 
release,  there  the  alteration  of  the  deed 
in  any  material  point,  after  its  execu- 
tion, whether  made  by  the  party  or  by 
a,  stranger,  would  certainly  defeat  the 
right  of  the  party  suing  to  recover. 
The  principle  thus  recognized  in  Pigot's 
case,  with  respect  to  deeds,  was,  in  the 
case  of  Master  v.  Miller,  4  T.  R.  320, 
and  2  H.  Bl.  141,  established  as  to  bills 
of  exchange  and  promissory  notes  ;  and 
the  gi'ound  on  which  the  decision  in 
that  case  was  put  by  the  court  of  error 
was,  that  in  all  such  instruments  a  duty 
arises  analogous  to  the  duty  arising  on 
deeds.  The  instrument  itself  proves 
the  duty,  without  auy  further  proof  to 
establish  it,  tihi  eculein  est  ratio,  eadem  est 
lex.  The  law  having  been  long  settled 
as  to  deeds,  was  held  to  be  also  appli- 
cable to  these  mercantile  instruments, 
which  though  not  under  seal,  yet  pos- 
sess properties,  the  existence  of  which 
in  the  case  of  deeds  was,  it  must  be  pre- 
sumed, the  foundation  of  the  rule.  But 
the  decisions  do  not  stop  thei-e.  In 
Powell  V.  Divett,  15  East,  29,  the  Court 
of  King's  Bench  extended  the  doctrine 
to  the  case  of  bought  and  sold  notes, 
holding,  that  a  vendor  who,  after  the 
bought  and  sold  notes  had  been  ex- 
cliangcd,  prevailed  on  the  broker,  with- 
out the  consent  of  the  vendee,  to  add  a 
term  to  the  bought  note  for  his  (the 
vendor's^  benefit,  thereby  lost  all  title 
to  recover  against  the  vendee.  The 
ground  on  which  the  court  proceeded 
was,  tliat  the  bought  note,  having  been 
fraudulently  altered  by  the  plaintiff, 
could  not  be  received  in  evidence  for 
any  purpose,  and  as  no  other  evidence 
was  admissible,  the  plaintiff  had  no 
means  of  asserting  any  claim  whatever. 
The  court  considered  that  Master  v. 
Miller  expressly  decided  the  ^oint  be- 
fore them,  and  Mr.  Justice  /.c  Jilanc, 
taking,  it  should  seem,  bis  view  of  that 


case,  not  from  the  judges  in  the  Exche- 
quer Chamber,  but  from  the  wider  line 
of  argument  adopted  by  Lord  Ktin/on 
in  the  court  below,  expressly  stated  that 
JNIaster  v.  Miller  was  not  confined  to 
negotiable  securities.  Now,  the  case  of 
Powell  V.  Divett  was  decided  more  than 
thirty  years  ago,  and  has  ever  since 
been  treated  as  law  ;  and  therefore,  al- 
though we  certainly  feel  that  there  are 
difficulties  in  the  extent  to  which  it  car- 
ries the  doctrine  of  Pigot's  case,  yet  we 
do  not  feel  it  open  to  us,  if  we  were  inclin- 
ed to  do  so,  to  act  against  that  autho- 
rity ;  and  the  only  question  therefore  is, 
whether  there  is  any  real  distinction  in 
principle  between  this  case  and  that  of 
Powell  V.  Divett.  The  only  differenee 
is,  that  in  Powell  v.  Divett,  the  altera- 
tion was  made  by  the  plaintiffs,  who 
held  the  written  instrument ;  whereas, 
in  this  case,  it  is  not  ascertained  by 
whom  the  alteration  was  made  ;  the 
jury  finding  that  the  alteration  was 
made  by  some  person  to  them  unknown, 
whilst  the  document  was  in  the  hands 
of  tlie  plaintiff.  After  much  reflection, 
we  are  of  opinion  that  this  does  not 
create  any  real  distinction  between  the 
two  cases.  The  case  of  Powell  v.  Divett 
was  decided  on  the  ground  that  written 
instruments,  constituting  the  evidence 
of  contracts,  are  within  the  doctrine  laid 
down  in  Master  v.  Miller,  as  applicable 
to  negotiable  securities ;  and  the  doc- 
trine established  in  Master  v.  Miller  was, 
that  negotiable  securities  are  to  be  con- 
sidered no  less  than  deeds,  within  the 
principle  of  the  law  laid  down  in  Pigot's 
case.  That  law  is,  that  a  material  al- 
teration in  a  deed,  whether  made  by  a 
party  or  a  stranger,  is  fatal  to  its  vali- 
dity ;  and  applying  that  principle  to  the 
present  case,  it  is  plain  that  there  is  no 
real  difference  between   this   case  and 

that  of  Powell  v.  Divett 

Considering  it,  therefore,  impossible  to 
distinguish  this  case  from  Powell  v. 
Divett,  we  think  that  the  jjlca  affords 
a  good  defence  to  the  action,  and  con- 
sequently the  rule  for  judgment  non 
obstante  veredicto  must  be  discharged." 
The  case  was  afterwards  carried  by  writ 
of  error  to  the  Exchequer  Cluimber, 
where  the  judgment  of  the  court  below 
was  unanimously  allirmed.  Lord  Den- 
man  in  delivering  the  judgment,  said, 
"After  much  doubt  we  think  the  judg- 
ment right.     The  strictness  of  the  rule 


en.  III.] 


DEFENCES. 


225 


not  set  it  up,  even  if  the  alteration  be  in  words  not  mate- 


on  this  sulijcct,  as  laid  clown  in  Pigot's 
case,  can  only  be  cx]ilaincd  on  the  prin- 
ciple that  a  party  who  has  the  custody 
of  an  instrument  made  for  his  benefit, 
is  bound  to  preserve  it  in  its  oriijinal 
state.  It  is  highly  important  for  pre- 
serving the  purity  of  legal  instruments 
that  tliis  principle  should  be  borne  in 
mind,  and  the  rule  adhered  to.  The 
party  who  may  suffer  has  no  right  to 
complain,  since  there  cannot  be  any  al- 
teration except  through  fraud,  or  laches 
on  his  part.  To  say  that  Pigot's  case 
has  been  overruled,  is  a  mistake ;  on 
the  contrary,  it  has  been  extended : 
the  autliorities  establishing,  as  common 
sense  requires,  that  the  alteration  of  an 
nnsealed  paper  will  vitiate  it."  And 
see  Mollctt  v.  Wackerbarth,  5  C.  B.  181. 
There  seems,  however,  at  one  time  to 
have  been  an  inclination  on  the  part  of 
the  English  courts  to  relax  the  rule 
declared  in  Pigot's  case.  Thus,  in  Ilen- 
frce  V.  Bromley,  6  East,  309,  it  was  held 
that  an  award  altered  by  the  umpire 
after  it  was  made  up  ready  for  delivery, 
and  notice  given  to  the  parties,  was  not 
entirely  vitiated  thereby,  but  that  the 
original  award  being  still  legible,  was 
good,  the  same  as  if  such  alteration  had 
been  made  by  a  mere  stranger  without 
the  privity  or  consent  of  the  party  inte- 
rested. Lord  EUenhoroiujh,  after  observ- 
ing that  the  umpire  had  no  authority  to 
make  the  alteration,  said,  "  still,  how- 
ever, I  see  no  objection  to  the  award 
for  the  original  sum  of  £57 ;  for  the 
alteration  made  by  him  afterwards  was 
no  more  than  a  mere  spoliation  by  a 
stranger,  which  would  not  vacate  the 
award."  And  again,  "I  consider  the 
alteration  of  the  award  by  the  umpire, 
after  his  authority  was  at  an  end,  the 
same  as  if  it  had  been  made  by  a 
stranger,  by  a  mere  spoliator.  And  I 
still  read  it  with  the  eyes  of  the  law  as 
if  it  were  an  award  for  £57,  such  as  it 
originally  was.  If  the  alteration  had 
been  made  by  a  person  who  was  inte- 
rested in  the  award,  I  should  have  felt 
myself  pressed  by  the  objection  ;  but  I 
can  no  more  consider  this  as  avoiding 
the  instrument,  than  if  it  had  been  obli- 
terated or  cancelled  by  accident."  The 
same  inference  may  be  drawn  from 
Ilutchins  V.  Scott,  2  M.  &  W.  809. 
There,  by  an  agreement  between  the 
plaintiff  and  defendant,  a  house.  No. 
38,  was  let  to  the  plaintiff.    After  the 


agreement  was  executed  and  delivered 
to  the  plaintiff,  it  was  altered  (it  was 
not  proved  by  whom)  by  writing  35 
instead  of  38,on  an  erasure.  The  house 
occupied  by  the  plaintilVundcr  the  agree- 
ment was  in  fact  No.  35  : — //eW,  that 
the  altered  agreement  might  be  given 
in  evidence  in  an  action  for  an  exces- 
sive distress  (in  which  the  demise  was 
admitted  on  the  record)  to  show  the 
terms  of  the  holding.  In  the  course  of 
the  argument,  Alderson,  B.,  interrupted 
the  counsel  to  say,  "  It  is  difficult  to  un- 
derstand why  an  alteration  by  a  stran- 
ger should  in  any  case  avoid  the  deed — 
why  the  tortious  act  of  a  third  person 
should  affect  the  rights  of  the  two  par- 
ties to  it,  unless  the  alteration  goes  the 
length  of  making  it  doubtful- what  the 
deed  originally  was,  and  what  the  par- 
ties meant."  And  Lord  Ahinger  added, 
"  Suppose  the  stranger  destroyed  in- 
stead of  altering  it  1  "  And  again  Lord 
Ahinger,  in  delivering  his  opinion  said, 
"  No  case  has  gone  the  length  of  saying 
that,  when  a  deed  is  altered,  and  there- 
by vitiated,  it  ceases  to  be  evidence  :  it 
may  be  so  with  reference  to  tlie  stamp 
laws : — there  is  no  occasion,  however, 
in  the  pi-esent  case,  to  raise  the  general 
question.  The  old  law  was,  no  doubt, 
much  more  strict  than  it  has  been  in 
modern  times.  Originally,  tlicre  could 
be  no  such  thing  as  founding  upon  a 
deed  without  making  profert  of  it ;  and 
it  was  but  an  invention  of  the  pleaders, 
growing  out  of  a  decision  of  Lord  Mans- 
JiekPs,  to  allege,  as  an  excuse  for  not 
making  profert,  a  loss  of  the  deed  by 
time  and  accident,  founded  on  the  pre- 
sumption to  be  derived  from  long  pos- 
session and  enjoyment.  I  can  hardly 
see  how  such  a  course  is  consistent  with 
the  old  authorities  which  say  that  any 
alteration,  even  by  a  stranger,  shall 
vitiate  a  deed.  If  it  be  so  altered  as 
to  leave  no  evidence  of  what  it  origi- 
nally was,  that  may  prevent  any  party 
from  using  it ;  [or  if  it  be  altered  in 
a  material  part  by  a  party  taking  a 
benefit  imder  it,  that  may  prevent  him 
even  from  showing  what  it  originally 
was.  Here,  however,  it  is  sufficient  to 
decide  that  this  agreement  was  evidence 
to  proTC  the  terms  of  the  holding  ;  and 
there  was  no  evidence  of  any  otlier  hold- 
ing than  that  of  the  house  No.  35." 
So  Pigot's  case  has  been  overruled 
by  the  Irish  courts.     Swiney  v.  Barry, 


226 


THE   LAW   OF   CONTRACTS. 


[part  II. 


rial.  (/•)  But  such  a  rule  would  now  be  applied,  if  at  all, 
with  grea*  relaxation.  If  the  alteration  does  not  vary  the 
meaning  of  the  instrument,  or  does  not  aflfect  its  operation, 
there  is  no  good  reason  why  it  should  make  the  instrument 
void,  (s)  The  reason  given  by  Lord  Kenyan,  that  "  no  man 
shall  be  permitted  to  take  the  chance  of  committing  a  fraud, 
without  running  any  risk  of  losing  by  the  event  when  it  is 
detected,"  {t)  is  neither  very  clear  nor  very  strong,  nor  does 
it  apply  to  an  immaterial  alteration.  We  may  therefore 
say,  that  in  this  country  generally,  no  immaterial  alteration 
would  avoid  an  instrument.  And  that  alteration  which  only 
does  what  the  law  would  do,  that  is,  only  expresses  what  the 
law  implies,  is  not  a  material  alteration,  and  therefore  would 
not   avoid   an   instrument,  [u)     Whether   the   alteration    is 


1  Jones,  109,  where  it  was  held  that  an 
alteration  in  a  material  part  of  a  deed 
by  a  stranger  does  not  avoid  the  deed  ; 
and  the  court  will  look  at  the  deed  as 
it  was  before  it  was  altered  ;  and,  there- 
fore, if  upon  oyer,  the  deed  is  set  out 
as  it  was  before  it  was  altered,  it  is  no 
variance.  And  in  this  country  it  is 
clearly  settled  that  a  material  altera- 
tion by  a  stranger  will  not  render  an 
instrument  void,  if  it  can  be  shown  by 
evidence  what  the  instrument  was  be- 
fore it  was  altered.  Nichols  v.  John- 
son, 10  Conn.  192;  Rees  u.Overbaugh, 
6  Cow.  746 ;  Lewis  v.  Payn,  8  Cow. 
71  ;  Medlin  v.  Platte  County,  8  Mis- 
souri, 235  ;  Davis  v.  Carlisle,  6  Ala. 
707;  Waring  v.  Smith,  2  Barb.  Ch. 
119  ;  Smith  v.  McGowan,  3  Barb.  404  ; 
Jackson  v.  Malin,  15  Johns.  293. 

(r)  Pigot's  case,  11  Rep.  27;  Lewis 
V.  Pavn,  8  Cow.  71;  Den  d.  Wright 
V.  Wright,  2  Halst.  175.  And  sec  Mol- 
lett  V.  Wackerbarth,  5  C.  B.  181.  But 
in  Pcquawket  Bridge  v.  INIathcs,  8  N. 
H.  R.  138,  it  was  held  that  an  imma- 
terial alteration  of  a  bond,  thougli  made 
by  the  obligee,  would  not  destroy  the 
bond.  And  see  to  the  same  effect.  Bow- 
ers V.  Jewell,  2  N.  H.  R.  543  ;  Nichols 
V.  Johnson,  10  Conn.  192. 

(s)  Sucli  seems  to  have  been  the  opi- 
nion of  tlie  court  in  Falmouth  v.  Ro- 
berts, 9  M.  &  W.  469.  And  it  was  ex- 
pressly so  held  in  Smith  v.  Crooker, 
5  Mass.  540,  wl)ere  the  name  of  tlic 
obligor  of  a  Ijond,  was  inserted  in  tlie 
lodij  of  the  instrument  by  the  obligee, 


after  it  was  signed.  See  also  Hunt  v. 
Adams,  6  Mass.  519,  as  to  supplying 
words  omitted  by  mistake,  or  which  the 
law  itself  would  supply.  In  Granite 
Railway  Co.  w.  Bacon,  15  Pick.  239,  a 
promissory  note  in  the  following  words 
was  signed  by  the  defendant :  "  For 
value  received  I  promise  to  \y^y  to 
Quincy  Railway  Company"  (wliowere 
the  plaintiffs)  "or  order,  one  thousand 
and  thirty  dollars,  in  six  months."  The 
note  was  then  indorsed  by  E.  P.,  and 
delivered  to  the  treasurer  of  the  plain- 
tiffs, who  without  the  knowledge  or 
consent  of  the  defendant,  inserted  the 
words  "  the  order  of  E.  P."  above  the 
words  "  Quincy  Railway  Company,  or 
order,"  but  without  erasing  the  latter 
words.  It  was  AeW,  that,  in  the  absence 
of  fraud,  this  was  not  an  alteration  af- 
fecting the  validity  of  the  note.  So  in 
Langdon  v.  Paul, '20  Verm.  217,  wlierc 
the  plaintiff  offered  in  evidence  a  seal- 
ed instrument,  in  which  tlie  defendant 
acknowledged  that  he  had  "  signed " 
certain  promissory  notes,  and  tlic  words 
"and  executed"  were  interlined  after 
the  word  "  signed,"  it  was  licld  that 
these  words  were  immaterial,  and  that 
no  explanation  of  the  time  when  the 
interlineation  was  made  was  necessary. 
See  also  cases  cited  in  preceding  note. 

(/)  ISIastcr  V.  Miller,  4  T.  R.  329. 

(h)  The  scnsilile  rule  on  this  subject 
seems  to  liave  lieen  arriveil  at  in  ^\dams 
V.  Fryc,  3  Met.  1 03,  where  it  was  licld  tliat 
if  after  tlic  execution  and  delivery  of 
an  unattested  bond,  the  obligee,  without 


en.  III.] 


DEFENCES. 


227 


material,  is  not  a  question  of  fact  for  a  jury,  but  of  law  for 
the  court ;  (v)  and  the  burden  of  proof  of  an  alteration  rests 
on  the  party  alleging  it.  [w) 

If  the  alteration  be  by  tearing  ofT  a  seal,  the  instrument 
cannot,  in  strict  law,  be  pleaded  with  a  profert,  but  the  facts 
should  be  specially  set  forth  as  the  reason  why  there  is  no 
profert.  (x)  If  a  seal  be  added  to  an  instrument,  this  has  been 
held  to  be  a  material  alteration ;  (ij)  but  we  think  it  would 
generally  be  regarded  as  immaterial  and  inoperative.     It  has 


the  knowledge  and  assent  of  the  obligor, 
fraudcntly,  and  with  a  view  to  some 
improper  advantage,  procures  a  person 
who  was  not  present  at  the  execution 
of  the  bond,  to  sign  liis  name  thereto  as 
an  attesting  witness,  the  bontl  is  there- 
by avoided  and  the  obligor  discharg- 
ed. Tiie  act  of  an  obligee  in  procur- 
ing a  person  who  ■was  not  present  tit 
the  execution  of  the  bond,  nor  duly 
authprized  to  attest  its  execution,  to 
sign  his  name  thereto  as  an  attesting 
witness,  is  priind  facie,  sufficient  to 
authorize  tiie  jury  to  infer  a  fraudulent 
intent.  But  it  is  competent  for  the 
obligee  to  rebut  such  inference ;  and  if 
the  act  be  shown  to  have  been  done  with- 
out any  fraudulent  purpose,  the  bond 
will  not  be  avoided  by  such  alteration. 
And  Dtwei/,  J.,  said,  "  There  was,  by 
the  alteration  which  was  made  in  the 
case  at  bar,  a  material  change  intro- 
duced as  to  the  nature  and  kind  of  evi- 
dence which  might  be  relied  upon  to 
prove  the  facts  necessary  to  substantiate 
the  pl;untitl"'s  case  in  a  court  of  law. 
By  adding  to  the  bond  the  name  of  an 
attesting  witness,  the  obligee  became 
entitled  to  show  the  due  execution  of 
the  same,  by  proving  tlie  handwriting 
of  the  supposed  attesting  witness,  if  the 
witness  was  out  of  the  jurisdiction  of 
the  court.  It  is  quite  obvious,  there- 
fore, that  a  fraudulent  jiarty  might,  by 
means  of  such  an  alteration  of  a  con- 
tract, furnish  the  legal  ])roof  of  the  due 
execution  thereof,  by  honest  witnesses 
swearing  truly  as  to  the  genuineness  of 
the  handwriting ofthe  supposed  attesting 
witness  ;  and  yet  the  attestation  might 
be  wholly  unauthorized  and  fraudulent. 
It  seems  to  us  that  we  ought  not  to 
sanction  a  principle  which  would  per- 
mit the  holder  of  an  obligation  thus  to 
tamper  with  it  with  entire  impunity. 
But  such  would  be  the  necessary  con- 


sequence of  an  adjudication  that  the 
subsequent  addition  of  the  name  of  an 
attesting  witness,  without  the  privity  or 
consent  of  the  obligee,  is  not  a  material 
alteration  of  the  instrument,  and  would 
under  no  circumstances  affect  its  vali- 
dity. But  we  think  that  it  would  be 
too  severe  a  rule,  and  one  which  might 
operate  with  great  hardship  upon  an 
innocent  party,  to  hold  inflexibly  that 
such  alteration  would,  in  all  cases,  dis- 
charge the  obligor  from  the  ])erforni- 
ance  of  liis  contract  or  obligation.  If 
an  alteration,  like  that  which  was  made 
in  the  present  case,  can  be  shown  to 
have  been  made  honestly,  if  it  can  be 
reasonably  accounted  for,  as  done  under 
some  misapprehension  or  mistake,  or 
with  the  supposed. assent  of  the  obligor  ; 
it  should  not  operate  to  avoid  the  obli- 
gation. But  on  the  other  hand,  if  frau- 
dulently done,  and  with  a  view  to  gain 
any  improper  advantage,  it  is  right  and 
proper  that  the  fraudulent  party  should 
lose  wholly  the  right  to  enforce  his  ori- 
ginal contract  in  a  court  of  law."  See 
also  Thornton  v.  Appleton,  29  Maine, 
298. 

(r)  Hill  V.  Calvin,  4  How.  (Miss.) 
231  ;  Bowers  v.  Jewell,  2  N.  H.  K. 
543;  Martindale  v.  Folk-t,  1  N.  H.  R. 
95,  when  the  insertion  of  tlie  word  young 
in  a  note  for  "  merchantable  neat  stock" 
was  held  material ;  Wheclock  v.  Free- 
man, 13  Pick.  1G5  :  Brackctt  v.  Mount- 
fort,  2  Fairf  115,  \\1iere  a  note  was  at- 
tested some  time  after  it  was  signed, 
and  it  was  held  tlmt  this  rendered  the 
note  void.  But  whether  the  alteration 
was  made  with  fradulent  motives,  or 
with  consent,  is  for  the  jury.  Bowers 
V.  Jewell,  2  N.  H.  II.  543. 

(w)  Davis  V.  Jenny,  1  Met.  221. 

(:r)  Powers  v.  Ware,  2  Pick.  451. 

((/)  Davidson  v.  Cooper,  11  M.  &  W. 
778,  13  id.  343. 


228 


THE   LAW   OF   CONTRACTS. 


[part  II. 


indeed  been  held,  that  when  a  seal  adds  no  actual  strength 
to  the  contract,  and  interferes  with  the  intention  of  the  par- 
ties, which  is  adequately  expressed  and  effected  by  the  in- 
strument regarded  as  a  simple  contract,  then  the  seal  may 
be  treated  as  mere  surplusage,  (c) 

In  the  ab/ence  of  explanation,  evident  alteration  of  any 
instrument  is  generally  presumed  to  have  been  made  af- 
ter the  execution  of  it ;  and  consequently  it  must  be  ex- 
plained by  the  party  who  relies  on  the  instrument,  or  seeks 
to  take  advantage  from  it.  Such  is  the  view  taken  by 
many  authorities  of  great  weight.  But  others  of  perhaps 
equal  weight  hold  that  there  is  no  such  presumption  ;  or,  at 
least,  that  the  question  whether  the  instrument  was  written 
as  it  now  stands  before  it  was  executed,  or  has  since  been 
altered,  and  whether  if  so  altered  it  was  done  with  or  with- 
out the  authority  or  consent  of  the  other  party,  are  questions 
which  should  go  to  a  jury,  to  be  determined  according  to  all 
the  evidence  in  the  case,  (a) 


[z]  Tructt  V.  Wainwriglit,  4  Gilm. 
411. 

(a)  It  seems  to  have  been  the  rule  of 
the  common  Iuav,  that  if  an  obvious  al- 
teration, or  interlineation  appeared  in  a 
deed,  it  would,  nevertheless,  in  the  ab- 
sence of  any  opposing  testimony,  be  pre- 
sumed to  have  been  made  before  the  deed 
was  finally  executed,  because  the  law  will 
never  presume  fraud  or  forgery  in  any 
person;  omnia  presumunter  rite  esse  acta. 
Co.  Litt.  22.'3.b,  n.  (1)  ;  Trowel  v.  Cas- 
tle. 1  Kcble.  22;  Den  r.Farlee,  1  N.  Jer. 
280,  the  alteration  being  a<jainst  the 
party  claiming  under  the  paj^cr;  so  is 
TuUen  V.  Shaw,  3  Uev.  2.38.  And  the 
same  rule  has  been  adhered  to  in  a  late 
Englisli  case.  Doc  d.  Tatliam  v.  Cata- 
more,  5  Eng.  Law  &  Eq.  11.  349.  And 
in  some  cases  the  same  principle  has 
been  followed  in  bills  of  exchange  and 
promissory  notes.  'Gooch  v.  Bryant, 
13  Maine,  386,  which  was  an  action  on 
a  note,  the  date  of  which  obviously  had 
been  at  some  time  materially  altered, 
but  when,  there  was  no  evidence  on 
cither  side.  Tlic  judge  Ijcforc  whom 
the  case  was  tried,  ruled,  that  altering 
it  after  the  execution  would  be  a  fraud 
which  was  not  to  be  presumed,  but  must 
be  proved,  and  the  plaintiff  had  a  ver- 
dict.   On  exceptions  this  ruling  was  sus- 


tained, Weston,  C.  J.,  saying, — "  There 
was  no  other  evidence  of  the  alteration 
of  the  note,  than  what  arose  from  in- 
spection, from  which  it  appeared  that 
one  of  the  figures  in  the  date  had  been 
altered.  Of  the  fact  there  could  be  no 
doubt;  but  the  more  important  inquiry 
was,  when  it  was  done.  If  altered  af- 
ter the  signing  and  delivery,  it  would 
vitiate  the  note  ;  if  before,  it  would  not. 
As  to  the  time,  no  evidence  was  offered 
by  either  party.  The  alteration  was 
not  in  itself  proof  that  it  was  done  after 
the  signature  ;  it  might  have  been  made 
before.  If  the  alteration  was  prima  facie 
evidence  that  it  was  done  after,  it  must 
be  upon  the  ground  that  such  is  the  pre- 
sumption of  law.  Hut  we  do  not  so  un- 
derstand it.  It  would  be  a  harsh  con- 
struction ;  exposing  the  holder  of  a  note, 
the  date  of  wliich  had  I)cen  so  altered 
as  to  accelerate  payment,  or  to  increase 
the  amount  of  interest,  to  a  conviction 
of  forgery,  unless  he  could  prove  that  it 
was  done  before  the  signature.  It  Avould 
be  to  establish  guilt  by  a  rule  of  law, 
when  there  would  l)e  at  least  an  equal 
probability  of  innocence.  ]5ut  such  can- 
not be  the  law ;  it  is  a  question  of  evi- 
dence, to  be  submitted  to  the  jury,  as 
was  done  in  the  case  before  us.  And 
they  were  properly  instructed,  that  it 


CIIz-III.] 


DEFENCES. 


229 


If  there  are  blanks  left  in  a  deed,  affecting  its  meaning  and 
operation  in  a  material  way,  and  they  are  filled  up  after  exe- 


was  a  case  not  within  the  statute  of 
limitations."  Bcaman  v.  Knssell,  20 
Vcrni.  205,  adopts  the  same  rule.  That 
also  was  a  case  of  an  alteration  in  the 
date  of  a  note,  and  the  suhjcet  is  there 
ably  examined.  Cumberland  Bank  v. 
Hall,  1  Ilalst.  215,  is  the  same  way.  In 
Wickes  r.  Caulk,  5  Harris  &  J.  3G,  the 
names  of  the  witnesses  to  a  deed  had 
been  erased.  The  court  refused  to  pre- 
sume that  the  erasure  was  after  execu- 
tion, saying, — ^- By  the  inspection  of 
the  original  deed,  the  names  of  the  two 
persons  are  written  in  the  place  where 
attesting  witnesses  generally  write  their 
names,  and  the  names  are  erased,  but 
when  they  were  erased,  wliethcr  before 
or  after  the  execution  of  the  deed,  does 
not  appear;  and  it  is  incumbent  on  the 
party  who  wishes  to  avoid  a  deed  bj' 
its  erasure,  to  prove  that  the  alteration 
was  made  after  its  execution  and  de- 
livery. Attesting  witnesses  are  not 
necessary  to  the  validity  of  a  deed,  and 
the  erasure  of  their  names,  by  a  stran- 
ger, would  not  avoid  it.  As  the  court 
therefore  were  not  bound  to  presume 
that  the  erasure  was  made  by  the  gran- 
tee, or  those  claiming  under  him,  after 
the  execution  and  delivery  of  the  deed, 
the  lessor  of  the  plaintiff  could  not  cali 
on  the  court  to  declare  the  deed  inope- 
rative." In  Clark  v.  Rogers,  2  Greenl. 
147,  it  is  said  that  in  such  cases  "fraud 
and  forgery  are  not  to  be  presumed." 
On  the  other  hand  there  are  many  able 
and  well  considered  decisions  to  the 
effect  that  it  is  incumbent  upon  a  party 
offering  an  instrument  which  has  an 
obvious  or  admitted  interlineation  or 
alteration  on  it,  which  is  material,  to 
explain  such  alteration,  and  show  that 
it  was  made  before  execution.  Not  the 
least  of  these  cases  is  that  of  Wilde  v. 
Armsby,  6  Cush.  314.  There,  in  an 
action  on  a  written  guarantee  of  the 
payments  of  George  Winchester  and 
company,  it  appeared,  on  the  face  of 
the  instrument,  the  signature  to  whicli 
was  admitted,  that  the  same  had  been 
altered  by  an  interlineation  of  the  words 
"  and  company,"  written  in  a  different 
handwriting  from  that  of  the  rest  of  the 
instrument,  and  in  a  different  ink.  It 
was  held,  that  tlie  burden  of  proof  was 
on  the  plaintiff  to  show,  that  the  inter- 
lineation was  made  before  the  instru- 


ment was  executed.  But  the  court  there 
said, — "  We  are  not  prepared  to  decide 
that  a  material  alteration,  manifest  on 
the  face  of  the  instrument,  is,  in  all  cases 
whatsoever,  such  a  susiiicious  circum- 
stance as  throws  the  burden  of  proof  on 
the  party  claiming  under  the  instru- 
ment. The  effect  of  such  a  rule  of  law 
would  be,  that  if  no  evidence  is  given 
by  a  party  claiming  under  such  an  in- 
strument, the  issue  must  always  be 
found  against  him,  this  being  the  mean- 
ing of  the  '  burden  of  proof  1  Cur- 
teis,  G40.  But  we  are  of  opinion,  upon 
the  authorities,  English  and  American, 
and  upon  principle,  that  the  burden  of 
proof,  in  explanation  of  the  instrument 
in  suit  in  this  case,  was  on  the  plain- 
tiff. It  was  admitted  by  his  counsel,  at 
the  argument,  that  the  words  '  and  Co.' 
which  were  interlined  in  the  guarantee, 
were  in  a  different  handwriting  from 
that  of  the  rest  of  the  instrument,  and 
also  in  different  ink.  In  such  a  case, 
the  burden  of  explanation  ought  to  be 
on  the  plaintiff;  for  such  an  alteration 
certainly  throws  suspicion  on  the  instru- 
ment." Probably  the  weight  of  autho- 
rity in  America  is,  that  in  ncgotiahk 
instruments,  the  burden  of  showing  that 
an  obvious  and  material  alteration  was 
lawfully  made  is  upon  the  party  claim- 
ing under  it.  Simpson  v.  Stackhouse. 
9  Barr.  186  ;  Hills  v.  Barnes,  11  N.  H.E. 
395  ;  McMicken  v.  Beauchamp,  2  Louis. 
R.  290  ;  Warren  v.  Layton,  3  Harring- 
ton, 404  ;  Commercial  Bank  v.  Lum,  7 
How.  (Miss.)  414;  Wilson  v.  Hender- 
son, 9  Smedes  &  Marsh.  375  ;  Hum- 
phreys V.  Guillow,  13  N.  H.  Iv.  385: 
Walters  v.  Short,  5  Gilman,  252 ;  Til- 
lou  V.  Clinton  Mut.  F.  Ins.  Co.  7  Barb. 
564.  And  in  England  the  current  of 
authority  is  unbroken  that  in  negoti- 
able instruments  a  different  rule  pre- 
vails from  that  applicable  to  deeds. 
Any  alteration  in  the  former  must  be 
cx])lained.  Ld.  Campbell,  C.  J.,  in  Doe 
d.  Tathara  v.  Catamorc,  supra  ;  Johnson 
V.  Marlborough,  2  Stark,  313;  Bishop 
V.  Chambrc,  3  C.  &  P.  55  ;  Taylor  r. 
Moselv,  6  C.  &  P.  273 ;  Sil)lev  v.  Fish- 
er, 7  Ad.  &  El.  444  ;  Kniaht  v.  Cle- 
ments, 8  Ad.  &  El.  215; 'Clifford  v. 
Parker,  2  Mann.  &  Gr.  909;  llcnman 
V.  Dickinson,  5  Bing.  183;  Cariss  v. 
Tattersall,  2  Mann.  &  Gr.  890;  Whit- 


VOL.  II. 


20 


230 


THE   LAW    OF   CONTRACTS. 


[part  II. 


cution,  there  should  be  a  rc-execution,  and  a  new  acknow- 
ledgment, (b)  But  no  alteration  in  a  deed  defeats  an  estate 
or  interest  granted  by  it,  if  the  estate  or  interest  have  vested ; 
for  in  that  case,  "  the  moment  after  its  execution  the  deed 
becomes  valueless,  so  far  as  it  relates  to  the  passing  of  the 
estate,  except  as  affording  evidence  that  it  was  executed."  (c) 


field  V.  Collingwood,  1  Car.  &  Ker.  325. 

Some  American  authorities  deny  any 
distinction  between  deeds  and  other  writ- 
ings, and  liold  the  burden  to  be  always 
on  the  party  claiming  under  an  instru- 
ment to  explain  any  alteration  in  it. 
Sec  Morris  v.  Vandercn,  1  Dallas.  67  ; 
Trcvost  V.  Gratz,  Pet.  C.  C.  369  ;  Jack- 
son d.  Gibbs  r.  Osborn,  2  Wend.  555 ; 
Acker  v.  Lcdyard,  8  Barbour,  514 ;  Jack- 
sou  V.  Jacoby,  9  Cowen,  125.  In  Eng- 
land may  be  found  many  decisions  to 
the  effect  that  alterations  apparent  in  a 
will,  will  be  presumed  to  have  been  made 
after  the  original  execution.  But  this 
seems  to  be  based  upon  the  construction 
of  the  Statute  of  Wills,  1  Vict.,  c.  26. 
See  Doe  d.  Shallcross  v.  Palmer,  6 
Eng.  Law  &  Eq.  11.  155  ;  Cooper  v. 
Bockett,  4  Moore,  P.  C  419  ;  Burgoyne 
V.  Showier,  1  Rob.  Ecc.  R.  5.  In  Kan- 
kin  V.  Blackwell,  2  Johns,  cases,  198, 
the  maker  of  a  note  relied  upon  an  al- 
teration in  the  date  and  amount,  as  a 
defence.  Ilis  proof  was  (Inter  alia)  the 
alterations  apparent  on  the  note  itself, 
from  which  the  jury  might  decide  whe- 
ther the  note  had  been  altered  or  not ; 
but  the  judge  overruled  the  evidence 
offered,  and  charged  tlie  jury  that  the 
mere  appearance  of  alterations  on  the 
face  of  the  note,  unaided  by  any  proof  as 
to  the  character  of  the  persons  through 
whose  hands  it  had  passed,  was  not  suf- 
ficient to  support  the  defence  set  up. 
The  jury,  accordingly,  found  a  verdict 
for  the  plaintift',  for  the  full  amount  on 
tlie  face  of  the  note,  with  interest.  The 
verdict  was  set  aside  because  other  com- 
petent evidence  was  not  admitted,  but 
the  court  observed, — "  Tlie  alterations 
on  the  face  of  the  note,  unsupported  by 
other  proof,  would  not  be  competent 
evidence  ;  but  if  any  previous  testimony 
had  been  offered,  to  show  that  tlie  note 
was  given  for  a  less  sum,  or  to  render 
it  probable  that  a  fraud  had  been  com- 
mitted, tlie  alteration  on  the  face  of  the 
note  would  have  been  a  strong  corrobo- 
rating circumstance,  if  not  decisive,  of 
ilic   truth   of  the   fact.      On   the  first 


ground,  we  think,  that  there  ought  to 
be  a  new  trial,  with  costs,  to  abide  the 
event  of  the  suit."  In  Bailey  v.  Taylor, 
11  Conn.  5.31,  the  -vfhole  reasoning  of 
the  court  is  against  the  principle,  tliat 
a  party  claiming  under  an  instrument, 
which  has  been  obviously  altered,  must 
necessarily,  and  in  all  cases,  explain 
such  alteration  before  he  can  recover 
upon  the  paper.  And  see  Matthews  v. 
Coalter,  9  Missouri,  705  ;  North  River 
Jleadow  Co.  v.  Shrewsbury  Church,  2 
New  Jersey,  424. 

(b)  Ilibblewhite  v.  McMorine,  6  M.  & 
W.  200.  But  see  upon  this  point.  Smith 
V.  Crooker,  5  Mass.  538  ;  Wiley  v.  Moor, 
17  S.  &  R.  438 ;  Duncan  v.  Hodges,  4 
McCord,  239  ;  Stone  v.  Wilson,  Id. 
203;  Pulton's  case,  7  Cow.  484;  Bank 
V.  Curry,  2  Dana,  142;  Jordan  v.  Neil- 
son,  2  Wash,  164;  Boardman  v.  Gore, 
1  Stew.  517  ;  Bank  y.McChord,  4  Dana, 
191. 

(c)  Per  Lord  Aln'nger,  in  Davidson  r. 
'Cooper,  11  M.  &  W.  800.  So  in  Chess- 
man V.  Whittemore,  23  Pick.  231,  it  was 
held  that  where  the  title  to  real  estate  un- 
der a  deed,  has  once  vested  in  the  gran- 
tee by  transmutation  of  possession,  it  will 
not  be  divested  or  invalidated  by  a  sub- 
sequent material  alteration  of  the  deed. 
And  Morton,  J.,  said  :  —  "  There  is  a 
manifest  distinction  between  executory 
contracts  and  conveyances  of  ]iroperty. 
When  deeds  of  conveyance  of  real,  or 
bills  of  sale  of  personal  property  are  com- 
pleted, and  possession  delivered  under 
them,  so  far  as  the  change  of  ownership 
depends  on  them  they  are  executed,  and 
the  property  passes  and  vests  in  the 
grantee.  The  instruments  may  become 
invalid,  so  that  no  action  can  be  main- 
tained upon  the  covenants  contained  in 
them,  and  yet  the  titles  which  have  been 
acquired  under  them,  remain  unail'ccted. 
When  a  person  has  become  the  legal 
owner  of  real  estate,  he  cannot  transfer  it 
or  part  with  his  title,  except  in  some  of 
the  forms  prescribed  by  law.  The  gran- 
tee may  destroy  liis  deed,  but  not. his 
estate.     He  may  deprive  himself  of  his 


OIL  III,]  DEFENCES.  231 

But  even  in  that  case,  if  the  party  in  possession  of  the  land 
under  the  deed,  is  suing  the  grantor  upon  any  of  his  cove- 
nants contained  in  the  deed,  an  alteration  of  the  deed,  sub- 
sequent to  the  execution,  would  have  the  same  effect  as  if 
made  in  any  other  instrument,  (d) 


SECTION  IX. 
OF  THE  PENDENCY  OF  ANOTHER  SUIT. 

Any  one  who  has  a  claim  against  another  is  at  liberty  to 
prosecute  this  claim  at  law,  and  the  whole  system  of  legal 
procedure  exists  for  the  purpose  of  making  effectual  his  en- 
deavors to  recover  the  debt,  if  it  be  just  and  legal.  But  no 
man  can  do  more  than  is  necessary  for  this  purpose,  or  use 
the  machinery  of  the  law  merely  to  vex  and  distress  another. 
Hence,  as  the  law  presumes  that  any  one  question  may  be 
tried  and  determined  by  means  of  one  action,  no  claimant 
may  bring  more  than  one  at  the  same  time.  Therefore,  it 
is  a  good  cause  of  abatement  of  an  action,  that  another  is 
then  pending  for  the  same  cause,  and  between  the  same  par- 
ties, (e)  But  the  prior  action  must  be  between  the  same  par- 
ties ;  (/)  and  the  plaintiff"  must  sue  in  the  same  capacity.  (^) 
And  it  has  been  held  that  the  parties  must  not  only  be  the 
same,  but  must  stand  in  the  same  relation  to  each  other  in  both 
suits.     Thus,  it  has  been  held  that  a  prior  suit  by  A.  against 

remedies  upon  the  covenants,  but  not  231  ;  "Waring   v.   Smyth,    2   Barb.  Ch. 

of  his  right  to  hold  the  property.     This  119. 

di.stinction  has  existed  from  tlie  earliest         (e)  Tracy  v.  Reed,  4  Blackf.  5G  ;  RIc- 

times."     And  see  Barrett  r.  Thorndike,  Kinsey  v.  Anderson,  4  Dana,  62  :  James 

1  Greenl.  R.  73 ;  Withers  i'.  Atkinson,  v.  Dowel,  7  Sm.  &  Mar.  333. 
1  Watts,  230;  Smith  v.  McGowan,  3         (/)  Therefore,  in  a  suit  against  A. 

Barb.  404  ;  Bolton  v.   The  Bishop  of  pendency  of  another  suit  for  the  same 

Carlisle,  2  H.  Bl.  2.59.     But  in  Bliss  v.  cause  against  B.  is  not  a  good  jilea  in 

Mclntirc,  18  Verm.  466,  it   was   held,  abatement.     Casey  v.  Harrison,  2  Dev. 

that  if  a  lessee  fraudulently   alter  his  244;  Henry  v.   Goldney,  15  M.  &  W. 

lease  in  a  material  part,  suhsccpient  to  494,  overruling  whatever  is  contrary  in 

its  execution,  he   thereby  destroys  all  Boyce  v.  Douglas,  1   Campb.  60.     And 

his  future  riglit  under  the  lease,  either  see' Logs  of  Mahogany,  2   Sumn.  589; 

to  retain  the  possession  of  the  premises,  Treasurers  v.  Bates,  2  Bail.  362 ;  Davis 

or  to  preclude  the  lessor  from  re-enter-  r.  Hunt,  id.  412;  Thomas  v.  Freelon, 

ing  upon  them.  17    Verm.  138. 

(f/)  Davidson  v.  Cooper,  11  M.  &  W.        (g)  Cornelius  v.  Vanarsdallen,  3  Pcnn. 

800  ;  Withers   v.    Atkinson,    1    Watts,  St.  434. 
23G  ;  Chessman  v.  AVhittemore,  23  Pick. 


232 


THE   LAW   OF   CONTRACTS. 


PART  II. 


B.  cannot  be  pleaded  in  abatement  of  a  subsequent  suit  by  B. 
against  A.  arising  from  the  same  cause,  (h)  In  England  the 
prior  suit  must  be  in  a  court  not  inferior  to  that  in  which  the 
second  is,  in  order  to  be  a  defence,  (i)  If  the  prior  action 
be  pending  in  another  State,  it  will  not  have  this  effect,  [j) 


{h)  See  "Wadleigh  v.  Veazic,  3  Sumn. 
165;  Colt  V.  Partridge,  7  Met.  570; 
Haskins  r.  Lombard,  16  Maine,  140. 
Whether  in  an  action  against  tico,  a 
prior  action  against  one  of  them  is  a 
good  cause  of  abatement,  may  not  per- 
liaps  be  fully  settled.  We  are  inclined 
to  believe  it  is.  See  Earl  of  Bedford  v. 
Bishop  of  Exeter,  Hob.  117  ;  llawlinson 
V.  Oriet,  1  Show.  75,  Carth.  96.  And 
e  converso.  Graves  r.  Dale,  1  Monr.  190; 
Atkinson  v.  The  State  Bank,  5  Blackf. 
84.  Though  there  was  a  misjoinder  of 
defendants  in  the  first  suit.    Id. 

(/)  Laugliton  v.  Taylor,  6  Mees.  & 
Welsh.  695;  Brinsby  v.  Gold,  12  Mod. 
204  ;  Sparry's  case,  5  Rep.  61  a. ;  Seers 
ih  Turner,  2  Ld.  Raym.  1102.  We  are 
not  aware  of  any  such  distinction  in  this 
country,  and  if  the  court  wliere  the 
cause  is  first  bi'ought  has  jurisdiction  to 
try  the  case  and  render  a  valid  judg- 
ment therein,  we  think  the  pendency 
of  that  suit  is  good  cause  of  abatement 
to  a  second  suit  in  anotlicr  and  higher 
court.  Sec  Bos  well  v.  Tunncll,  10  Ala- 
Iiama,  958  ;  Johnston  v.  Bower,  4  Hen. 
&  Mun.  487;  Thomas  v.  Freelon,  17 
Verm.  138  ;  Slyhoof  u.  Elitcraft,  1  Ash- 
mead,  171 ;  Ship  Robert  Fulton,  1  Paine, 
620.  But  see  farther.  Smith  v.  The  At- 
lantic M.  F.  Ins.  Co.  2  Fost.  21,  cited 
infra,  n.  {j)  ;  and  Bowne  v.  Joy,  9 
Johns.  221. 

[j)  The  current  of  authorities  is  to 
the  effect  that  the  pendency  of  an  action 
in  &  foreign  tribunal,  although  of  com- 
petent jurisdiction,  is  not  good  cause  of 
abatement.  Story,  Court,  of  Laws,  (Ben- 
nett's Ed.)  §  610  a,  and  cases  cited. 
See  also  Ostell  v.  Lepage,  10  Eng.  Law 
&  Eq.  R.  250,  a  case  in  equity  ;  McJilton 
'•.  Love,  13  Illinois,  486  ;  Bowne  i".  Joy, 
9  Johns.  221;  Walsh  v.  Durkin,  12 
.Johns.  99;  Russel  v.  Field,  Stuart's 
Lower  Canada  11.  558 ;  Bayley  ?».  Ed- 
wards, 3  Swanst.  703  ;  Sahnon  ?;.  Woo- 
ton,  9  Dana,  422  ;  Chatzcl  v.  Bolton,  3 
McCord,  33.  And  see  ante,  p.  119,  n. 
(o).  But  see  contra,  Balch,  er /^arte,  3 
McLean,  221.  And  sec  Hurt  y.  Grang- 
er, 1  Conn.  154.  If  a  plea  of  sucli 
foreign  suit  ever  is  good  in  al)atcment, 


it  must  clearly  show  the  jurisdiction  of 
such  foreign  court  over  the  subject- 
matter,  and  the  persons  of  the  parties. 
Newell  V.  Newton,  10  Pick.  470  ;  Tren- 
ton Bank  v.  Wallace,  4  Halst.  83.  And 
see  Smith  v.  The  Atlantic  M.  F.  Ins. 
Co.,  2  Fost.  21.  In  this  last  case  the 
question  arose  whether  the  Circuit  Court 
of  the  United  States  for  the  district  of 
New  Hampshire  was  a  foreign  court 
quoad  the  state  courts  of  New  Hamp- 
shire ;  and  it  was  held  that  it  was  not ; 
and  therefore  that  the  pendency  of  ano- 
ther action  for  the  same  cause  in  the 
former  court,  if  that  court  had  jurisdic- 
tion, is  a  good  plea  in  abatement  of  Jin 
action  in  the  latter  courts.  Perky,  J., 
said, — "  The  ground  is  taken  for  the 
plaintiff  that,  as  to  the  courts  and  go- 
vernment of  New  Hampshire,  tlie  Circuit 
Court  of  the  United  States  for  this  dis- 
trict, is  to  be  regarded  as  a  court  of 
foreign  jurisdiction  ;  and  for  that  reason 
an  action  pending  in  the  Circuit  Court 
of  this  district  cannot  be  pleaded  in 
abatement  of  a  subsequent  suit  brought 
for  the  same  cause  in  a  court  of  this 
State.  The  judiciary  of  the  United 
States  is  a  branch  of  the  general  go- 
vernment of  this  country,  established 
by  the  constitution.  The  Circuit  Court 
of  the  United  States,  within  its  territo- 
rial limit,  and  as  to  causes  within  its 
jurisdiction,  cannot  be  regarded  as  a 
foreign  court.  Its  powers  are  not  de- 
rived from  any  foreign  government. 
Its  judgments  operate  directly  to  bind 
pers.ons  and  property  within  this  State  ; 
its  process,  mesne  and  final,  is  cftoctual 
to  enforce  its  own  orders  and  judgments. 
The  Circuit  Court  of  another  district 
has  no  authority  within  this  State,  and 
may  be  considered  territorially  and  for 
some  purposes  as  a  foreign  jurisdiction. 
The  Circuit  Court,  and  the  courts  of  this 
State,  derive  tlicir  powers  from  different 
sources,  and  for  most,  if  not  for  all  pur- 
poses, are  independent  of  each  other. 
But  in  certain  cases  they  exercise  con- 
current jurisdiction.  The  case  suppos- 
ed by  the  plea  in  this  action,  is  one 
of  them.  Tlie  plaintiff  had  his  elec- 
tion to  pursue  liis  remedy  in  the  courts 


CH.  III.] 


DEFENCES. 


233 


except  in  the  case  of  a  foreign  attachment  or  trustee  pro- 
cess, (k) 

And  there  is  an  exception  to  that  part  of  the  rule  which 
requires  the  parties  to'be  the  same,  in  the  case  of  a  qui  tarn 
action,  which  may  be  brought  by  any  informer.  There  the 
principle  upon  which  the  rule  is  founded,  namely,  that  the 
defendant  shall  not  be  twice  vexed,  requires  the  second  suit 
to  abate,  although  the  first  were  prosecuted  by  a  different 
person.  (1) 


of  this  State,  or  resort  to  tlie  concurrent 
jurisdiction  of  the  Circuit  Court.  The 
general  rule  of  law  forbids  that  a  de- 
fendant should  be  harrassed  by  two 
suits  for  the  same  cause  at  the  same 
time.  In  some  cases,  wliere  the  first 
suit,  from  defect  of  jurisdiction  in  the 
court,  cannot  give  adequate  remedj^,  a 
second  action  is  allowed.  This  case 
falls  clearly  within  the  reason  of  the 
general  rule,  which  prohibits  the  second 
suit.  No  ground  has  been  suggested, 
and  none  occurs  to  us,  for  supposing 
that  two  suits,  one  in  a  State  court,  and 
the  other  in  the  Circuit  Court  for  the 
same  State,  are  less  vexatious  and  op- 
pressive to  the  defendants,  than  two 
suits  in  the  same  court.  On  the  other 
hand,  the  plaintiff  fails  to  bring  himself 
within  the  reason  of  the  excepted  cases, 
where  a  second  action  is  allowed,  be- 
cause the  court  in  which  the  first  was 
pending,  cannot  give  complete  remedy 
for  want  of  jurisdiction  over  the  person 
or  property  of  the  defendants.  Where 
the  prior  suit  is  in  an  inferior  court  of 
special  and  limited  jurisdiction,  incapa- 
ble of  affording  the  plaintiff  the  remedy 
which  he  needs,  the  prior  will  not  abate 
the  second,  though  both  courts  exercise 
their  jurisdiction  in  the  same  country. 
Sparry's  case,  .5  Coke,  62  a.  But  the  fact 
that  the  court  in  which  the  prior  action 
is  pending  is  a  subordinate  jurisdiction, 
would  seem  to  be  no  objection  to  the 
plea,  provided  the  first  action  can  give 
adequate  and  complete  remedy.  It  has 
been  decided  in  numerous  cases  that  an 
action  pending  in  a  court  whose  juris- 
diction is  terrilorialhj  foreign  cannot  be 
pleaded  in  abatement.  The  reason  of 
this  rule  would  seem  to  be,  not  that  the 
authority  of  the  foreign  court  is  ques- 
tionable within  the  limits  of  its  jurisdic- 
tion, but  because  the  foreign  court  can- 
not enforce  its  orders  and  judgment  bc- 

20* 


yond  its  own  territory ;  and,  on  this 
account,  the  remedy  of  the  plaintiff  by 
his  prior  suit  may  be  incomplete.  The 
defendant  may  have  property  which 
ought  to  be  applied  to  the  payment  of 
the  same  demand  in  both  jurisdictions  ; 
or  his  property  may  be  in  one  jurisdic- 
tion, and  his  person  in  another;  and 
suits  for  these  and  other  reasons  may 
be  necessary  in  both  territorial  jurisdic- 
tions. It  has  accordingly  been  held, 
that  a  suit  pending  in  the  Circuit  Court 
for  another  district  cannot  be  pleaded 
in  abatement  of  a  suit  in  a  State  court. 
Walsh  V.  Durkin,  12  Johns.  99.  But 
in  this  case  the  plaintiff's  remedy  was 
as  complete  and  effectual  in  the  Circuit 
Court,  as  he  could  have  in  the  courts  of 
this  State.  The  mesne  process  of  that 
court  gives  security  on  the  person  and 
property  of  the  defendant,  at  least  as 
effectual  as  can  be  had  by  ours :  the 
trial,  if  held,  would  be  by  jurors  of  this 
State  ;  the  judgment  for  the  plaintiff' 
would  be  final  and  conclusive,  and  could 
be  executed  by  the  process  of  that  court 
throughout  the  State.  The  plaintiff, 
therefore,  had  no  more  necessity  or  ex- 
cuse for  his  second  suit,  than  he  would 
have  had  if  both  had  been  in  the  same 
court.  And  it  has  accordingly  been 
held  that  the  judgment  of  the  Circuit 
Court  for  the  same  State,  is  not  to  be  con- 
sidered in  the  State  courts  as  a  foreign 
judgment.  Barney  v.  Patterson,  6  Har. 
&  Johns.  203.  We  are  of  opinion  that 
the  pendency  of  another  action  for  the 
same  cause,  between  the  same  parties, 
in  the  Circuit  Court  of  the  United  States, 
is  sufficient,  if  well  pleaded,  to  abate  a 
suit  in  the  courts  of  this  State,  where 
the  Circuit  Court  had  jurisdiction  of  the 
prior  cause." 

(k)  Secan^e,  p.  119,  n.  (n). 

(I)  See  Commonwealth  v.  Churchill, 
5  Mass.  174  ;  Commonwealth  i-.  Cheney, 


234  THE   LAW   OF   CONTRACTS.  [PART  II. 


SECTION  X. 

OF   FORMER  JUDGMENT. 

The  whole  purpose  of  the  law  being  to  settle  questions 
and  terminate  disputes,  it  will  not  permit  a  question  which 
has  been  settled  to  be  tried  again,  (m)  But  it  must  be  the 
meaning  of  this  rule  —  for  this  meaning  is  required  by  obvious 
justice  —  that  only  a  question  which  has  been  settled  after  a 
full  and  regular  trial,  and  which  has  been  the  object  of  direct 
investigation,  and  to  which  parties  have  had  their  attention 
drawn  in  such  wise  as  to  warrant  the  supposition  that  a  new 
trial  would  but  repeat  a  former  process,  —  only  a  question 
tried  in  this  way  is  excluded  from  further  trial.  For  it  would 
be  unjust  and  dangerous  to  permit  a  party  to  bring  up  an 
important  question  incidentally,  and  then  bind  conclusively 
the  other  party  by  the  result,  although  he  might  well  have 
neglected  this  question,  for  this  time,  in  his  wish  to  confine 
all  his  attention  and  all  his  efforts  to  what  he  had  a  right  to 
deem  the  true  question.  The  rule  therefore  may  be  express- 
ed thus,  —  that  a  judgment  on  the  same  matter  in  issue  is  a 

6  Mass.  347.     The  true   spirit  of  the  sought   to  be  reached   by  the  trustee 

rule   also   requires  the  former  suit   to  process.     "Wadleigh  v.  Pillsbury,  14  N. 

have  been   valid  and  effectual ;  other-  H.  K.  373.     And  see  Morton  v.  Webb, 

wise  the  second  suit  will  not  be  cousi-  7  Vermont,  123.    Neither  is  a  suit  at 

dered  vexatious.    Downer  i\  Garland,  law  a  defence  to  a  suit  in  equity.     Peak 

21  Verm.  3G2;  Hill  v.  Dunlap,  15  Id.  v.   Bull,  8  B.  Monroe,  428.     Nor  vice 

CA5  ;    Quinebaug  Bank  v.   Tarbox,  20  versa.     Calt  v.  Partridge,  7  Met.  570 ; 

Conn.  510;   Durand  v.   Carrington,    1  Ilaskins  v.  Lombard,  16   Maine,  140; 

Root,  355.     Tiic  prior  suit  must   also  Blanchard  v.    Stone,    16   Verm.   234  ; 

iiavc  been  actually  entered  in  court,  for  lialph  v.  Brown,  3  Watts.  &.  Serg.  395. 

it  must  be  proved  by  the  record  to  l)e  for  (m)  But  the  party  insisting  ujion  a 

the  same  cause,  and  pending  when  the  former  recovery  as  a  bar  to  an  action, 

second  was  commenced.   Parker  v.  Col-  must  show  that  the  record  of  the  former 

cord,  2  N.  II.  R.  36  ;  Commonwealth  v.  suit  includes  the  matter  alleged  to  have 

Churchill,  5  Mass.  174  ;  Trenton  Bank  been   determined.     CamjjbcU   r.  Butts, 

('.Wallace,  4  Ilalst.  83;  Smith  v.  M-  3    Comst.    173.     Consc((ucntly,   wliere 

lantic  M.  F.  Ins.  Co.,  2  Post.  21.     The  the  declaration  in  the  tirst  suit  states  a 

pendency  of  a  prior  suit  in  which  the  dc-  particular  matter  as  the  grounJ  of  ac- 

fendant  is  summoned  as  trustee  of  the  tion,  and  issue  is  taken  by  the  dcfend- 

]ilaintitf,  is  no  cause  for  abatement  of  a  ant,  parol  proof  is  inadmissible  to  show 

suit   subsequently   commenced-  by   the  that   a   ditrercnt   sulycct   was   litigated 

plaintiff  (the  principal  defendant  in  tlic  upon  the  trial.     Id. 
lirst   action)   for   tlic    cause  of  action 


en.  III.] 


DEFENCES. 


235 


conclusive  bar.  («)     But  when  we  come  to  the  meaning  of 
the  phrase,  "  the  same  matter  in  issue,"  and  to  the  applica- 


(n)  The  Duchess  of  Kingston's  case, 
20  Howell's  State  Trials,  538,  is  the 
leading  case  on  this  point.  Lord  Chief 
Justice  De  Grey  there  said:  —  "From 
the  variety  of  cases  relative  to  judg- 
ments being  given  in  evidence  in  civil 
suits,  these  two  deductions  seem  to  fol- 
low as  generally  true;  —  First,  that  the 
judgment  of  a  court  of  concurrent  juris- 
diction, directly  itpon  the  point,  is,  as  a 
plea,  a  bar,  or,  as  evidence,  conclusive 
between  the  same  parties,  upon  the  same 
matter,  directly  in  rjuestion  in  another 
court.  Secondly,  that  the  judgment  of 
a  court  of  exclusive  jurisdiction,  directly 
upon  the  point,  is,  in  like  manner,  con- 
clusive upon  the  same  matter,  between 
the  same  parties,  coming  incidentally  in 
question  in  another  court  for  a  different 
purpose.  But  neither  the  judgment  of 
a  concurrent  or  exclusive  jurisdiction  is 
evidence  of  any  matter  which  came  col- 
laterally in  question,  though  within 
their  jurisdiction,  nor  of  any  matter  in- 
cidentally cognizable,  nor  of  any  matter 
to  be  inferred  by  argument  from  the  judg- 
ment." This  rule  was  expressly  adopted 
by  Story,  J.,  in  Harvey  v.  Richards,  2 
Gall.  229 ;  and  by  Gibson,  C.  J.,  in 
Hibshman  v.  Dulleban,  4  Watts,  191. 
See  also  Wright  v.  Deklyne,  1  Peters, 
C.  C.  R.  202  ;  Gardner  v.  Buckbee,  3 
Cowen,  120.  In  this  last  case,  B.  sued 
G.  upon  a  promissory  note,  in  the  Ma- 
rine Court  of  the  city  of  New  York, 
and  G.  pleaded  the  general  issue,  with 
notice  that  the  note  was  given  upon 
the  fraudulent  sale  of  a  vessel  by  B.  to 
G.,  which  was  the  question  upon  the 
trial,  and  the  verdict  was  for  the  defend- 
ant :  and  afterwards  B.  sued  G.  in  the 
Court  of  Common  Pleas  for  the  city  and 
county  of  New  York  upon  another  note 
given  upon  the  same  purchase ;  held, 
that  upon  the  trial  of  the  second  cause, 
the  record  and  proceedings  in  the  first 
were  conclusive  evidence  of  the  fraud, 
and  were  a  conclusive  bar  to  the  second 
action  ;  that  the  proper  course  was  to 
give  the  record  of  the  Marine  Court  in 
evidence,  and  then  show  by  parol  evi- 
dence, (e.  g.,  by  the  justice  who  tried  the 
first  cause)  that  the  same  question  had 
been  tried  before  him.  So  where  B. 
brought  trespass  quare  clausumfregit  in 
May,  1816,  laying  the  trespass  with  a 
co?i<!"/i!/an(/o  between  the  1st  November, 


1814,  and  the  24th  November,  1815,  and 
recovered :  and  then  brought  trespass 
against  the  same  defendant  for  a  subse- 
quent injury  to  the  premises  in  question 
in  tlie  former  suit ;  it  was  held,  that  the 
record  in  the  former  suit,  followed  by 
parol  evidence  that  the  premises  in 
question  were  the  same  in  both,  was 
conclusive  evidence  of  the  plaintiff's 
title  in  the  second  action ;  that  it  ope- 
rated against  the  defendant  by  way  of 
estoppel,  whether  it  was  pleaded  or 
given  in  evidence  in  the  second  suit. 
Burt  V.  Sternburgh,  4  Cowen,  559.  See 
also  Outram  v.  Moixwood,  3  East,  346 ; 
George  v.  Gillespie,  1  Greene,  (Iowa) 
421.  It  is  not  necessary  that  the  plain- 
tiff's claim  in  both  suits  be  identical. 
If  both  arise  out  of  the  same  transaction, 
and  the  defence  is  equally  applicable  to 
both,  the  first  judgment  will  be  conclu- 
sive. Bouchaud  v.  Dias,  3  Denio,  238. 
In  this  case  H.  C.  was  indebted  to  the 
United  States  for  duties,  arising  upon  a 
single  importation,  and  gave  two  bonds 
with  the  same  sureties,  payable  at  dif- 
ferent times,  for  distinct  parts  of  the 
same  debt.  One  of  the  sureties  having 
paid  both  bonds,  brought  an  action  in 
the  Superior  Court  of  the  city  of  New 
York  against  his  co-surety  for  contri- 
bution on  account  of  tlie  money  paid 
upon  one  of  the  bonds,  and  the  defend- 
ant pleaded  a  discharge  of  himself  from 
the  whole  debt  by  the  secretary  of  the 
treasury,  pursuant  to  the  act  of  con- 
gress, to  which  the  plaintiff  demurred, 
and  judgment  was  given  against  him. 
Held,  that  such  judgment  was  a  conclu- 
sive bar  to  a  subsequent  action  in  the 
Supreme  Court  between  the  same  par- 
ties, in  which  the  plaintiff"  sought  to 
recover  contribution  on  account  of  the 
money  paid  on  the  other  bond.  So 
where  A.  took  from  B.  a  bill  of  sale  of 
certain  personal  property,  and  C.  after- 
wards levied  upon  the  propert}'  by  vir- 
tue of  attachments  in  fiivor  of  B.'s  cre- 
ditors, and  A.  subsequently  took  and 
converted  to  his  own  use  a  part  of  the 
property,  for  which  C.  sued  him,  and 
recovered  judgment  in  a  justice's  court, 
on  the  ground  that  tlie  bill  of  sale  was 
fraudulent  and  void  as  to  the  creditors  ; 
it  was  held,  that  the  judgment  was  con- 
clusive upon  the  question  of  fraud,  in 
an  action  of  replevin  afterwards  brought 


236 


THE   LAW   OF    CONTRACTS. 


[part  II. 


tion  of  the  rale,  we  find  an  irreconcilable  conflict  between 
the  authorities,  (o)  Much  of  the  difl^culty  springs,  no  doubt, 
from  the  relaxation  of  the  rules  and  practice  of  pleading ; 
but  there  are  questions  on  this  subject  in  their  own  nature 
difficult,  and  which  can  only  be  determined  by  farther  adju- 
dication. It  may  be  difficult  to  draw  the  line,  but  it  is 
necessary  that  it  should  be  drawn  somewhere.  (/;)  Suppose 
that  in  an  action  for  assault  and  battery,  in  which  the  gene- 
ral issue  is  pleaded,  the  defendant  relies  upon  the  "  molliter 
manus  imposuit"  asserting  the  alleged  assault  to  have  taken 


by  A.  against  C.  in  the  Supreme  Court, 
to  recover  tlie  residue  of  the  property. 
Doty  V.  Brown,  4  Comst.  71. 

[o]  This  question  was  examined  by 
Parlcer,  C.  J.,  with  his  accustomed  abi- 
lity, in  King  v.  Chace,  15  N.  H.  R.  9. 
It  was  there  held  that  by  "  the  matter 
in  issue  "  is  to  be  understood  that  mat- 
ter upon  which  the  plaintiff  proceeds  by 
his  action,  and  which  the  defendant  con- 
troverts by  his  pleadings ;  that  the  facts 
offered  in  evidence  to  establish  the  mat- 
ter which  is  in  issue  are  not  themselves 
in  issue  within  the  meaning  of  the  rule, 
although  they  may  be  controverted  on 
trial.  Thus,  where  an  action  of  trover 
is  brought,  and  a  deed  is  offered  in  evi- 
dence to  establish  the  title  of  the  plain- 
tiff, and  impeached  by  the  other  party 
as  fraudulent,  if  the  jury,  in  considering 
the  case,  are  of  the  opinion  that  the  deed 
is  fraudulent,  and  they  find  that  the 
property  in  question  is  not  the  pi'operty 
of  the  plaintiff,  and  return  a  verdict  that 
the  defendant  is  not  guilty,  the  verdict 
and  judgment  will  not  conclude  the 
plaintiff,  in  another  suit,  for  the  reco- 
very of  other  property  included  in  the 
same  conveyance.  Nor  can  the  verdict 
be  used  in  evidence  to  impeach  the  deed 
in  such  subsequent  suit. 

(p)  It  is  not  essential  that  the  second 
suit  should  be  in  the  same  form  as  the 
first,  in  order  that  a  judgment  therein 
should  be  a  bar.  If  the  cause  of  action 
is  the  same  in  both,  the  former  judg- 
ment is  conclusive.  Thus,  a  judgment 
in  trover  is  a  bar  to  a  second  action  of 
assumpsit  for  the  value  of  the  same 
goods.  Agncw  v.  McElroy,  10  Sm.  & 
Slar.  552  ;  Young  v.  Black,  7  Cranch, 
565  ;  Livcrmore  v.  Ilerschell,  3  Pick. 
3.3.  Sec  Loomis  v.  Green,  7  Greenl. 
3S6..  Whore  the  cause  of  action  is  the 
same,  a  former  judgment  in  a  suit  be- 


tween the  same  parties,  though  an  in- 
adequate one,  is  a  bar  to  a  second 
recovery.  Pinney  v.  Barnes,  1 7  Conn. 
420.  In  that  case  an  action  was 
brought,  in  the  name  of  the  judge  of 
probate,  against  a  removed  executor,  on 
his  probate  bond,  in  which  action  sun- 
dry breaches  were  assigned,  and  among 
them,  that  the  defendant  had  neglected 
and  refused,  upon  demand  made  there- 
for, to  pay  over  to  his  successor  the 
moneys  in  his  hands  belonging  to  the 
estate;  and  thereupon  judgment  was 
rendered  against  the  defendant  for  a 
certain  sum  and  costs.  On  a,  scire  facias 
afterwards  brought  on  this  judgment,  it 
appeared  that  the  testator  had  given  by 
his  will  certain  legacies,  payable  to  the 
legatees  respectively  when  they  should 
become  eighteen  years  of  age ;  that  nei- 
ther at  the  time  of  the  defendant's  re- 
moval from  ^office,  nor  at  the  trial  of, 
and  judgment  in,  the  original  action, 
had  these  legatees  arrived  at  that  age  ; 
that  the  defendant  had  then  in  his  hands 
moneys  belonging  to  the  estate,  derived 
from  a  sale  of  lands  under  a  decree  of 
probate,  sufficient  to  pay  such  legacies, 
which  he  still  retained  ;  that  on  the 
trial  of  such  action,  no  claim  was  made 
or  evidence  offered  in  relation  to  the 
non-payment  of  such  legacies,  nor  were 
they  considered  by  the  court  or  included 
in  the  judgment,  tlic  action  having  been 
instituted  and  prosecuted  solely  for  the 
benefit  of  those  entitled  to  the  residuum 
of  the  estate  after  the  payment  of  such 
legacies.  Ilild,  Williants,  C.  J.,  and 
Waite,  J.,  dissenting,  that  the  former 
judgment  must  be  considered  as  cover- 
ing the  whole  ground,  and  constituting 
a  bar  to  any  claim  for  the  legacies  in 
the  scire  facias,  the  cause  of  action  in 
both  suits  being  cssentiallv  the  same. 


en.  III.] 


DEFENCES. 


237 


place  on  his  own  land  ;  this  the  plaintiff  denies,  and  it  is  the 
main  or  only  question  actually  controverted.  Could  a  judg- 
ment in  this  case  be  interposed  as  a  bar  to  a  writ  of  entry 
for  the  same  land,  between  the  same  parties  ?  AVe  think  it 
clear  that  it  could  not.  But  if  to  trespass  quare  clansum^ 
soil  and  freeliold  are  pleaded  by  the  defendant,  can  a  judg- 
ment in  this  action  be  pleaded  in  bar  to  a  writ  of  entry?  It 
is  more  difficult  to  answer  this  question,  because  it  differs 
from  the  former  in  the  new  element,  that  the  title  to  the  very 
land  is  put  in  issue  of  record,  and  by  the  pleadings.  And 
very  high  authorities  answer  this  question  dift'erently.  {q) 
Again,  if  in   trover,  the  question  turns  upon  the  validity  of 


(q)  Thus,  in  Arnold  v.  Arnold,  17 
Pick.  4,  which  was  a  writ  of  right,  the 
tenant  ])leadcd  a  judgment  in  favor  of 
his  grantor  rendered  in  an  action  of 
trespass  quare  dausuin  upon  an  issue 
joined  upon  a  plea  of  liherum  tenementum, 
and  the  plea  was  held  to  be  no  bar. 
And  from  the  opinion  delivered,  it  seems 
that  the  judgment  upon  this  plea  would 
have  been  the  same,  if  it  had  been  inter- 
posed as  a  bar  to  a  writ  of  entry.  And 
in  Mallett  v.  Foxcroft,  1  Story,  474,  it 
was  held  to  be  no  bar  to  a  writ  of  right, 
that  there  had  been  a  judgment  on  a 
petition  for  partition  between  the  same 
parties,  in  favor  of  the  tenant,  upon  an 
issue  joined  therein  on  the  sole  seisin  of 
the  demandant.  But  in  Dame  v.  Win- 
gate,  12  N.  H.  291,  it  was  directly  de- 
cided that  a  judgment  rendered  in  an 
action  of  trespass  quare  clausum  upon  an 
issue  joined  on  a  plea  of  liberiim  tene- 
mentum, is  a  bar  to  a  writ  of  entry  for 
the  same  premises.  And  Gi/c/irist,  J., 
said  : —  "  It  is  a  principle  well  establish- 
ed in  the  law,  that  a  former  judgment, 
upon  a  point  directly  in  issue  upon  the 
face  of  the  pleadings,  is  admissible  in 
evidence  against  the  parties  and  their 
privies,  in  a  subsequent  suit,  where  the 
same  point  comes  in  question.  Nor  is 
it  material  that  the  former  suit  was 
trespass,  and  the  latter  a  writ  of  entry, 
if  the  same  goint  were  decided  in  tiie 
former  suit.  It  is  not  the  recovery,  but 
the  matter  alleged  by  the  party,  and 
upon  which  the  recovery  proceeds, 
which  creates  the  estoppel.  The  reco- 
very of  itself,  in  an  action  of  trespass, 
is  only  a  bar  to  the  future  recovery  of 
damages  for  the  same  injury ;  but  the 


estoppel  precludes  parties  and  privies 
from  contending  to  the  contrary  of  that 
point,  or  matter  of  fact,  which,  having 
once  distinctly  been  put  in  issue  by 
them,  or  by  "those  to  whom  they  are 
privy,  in  estate  or  law,  has  been  on 
such  issue  joined,  solemnly  found 
against  them.  Ellenhorougli,  C.  J.,  Out- 
ram  V.  Morewood,  3  East,  355.  The 
recovery  concludes  nothing  upon  the 
ulterior  right  of  possession,  much  less 
of  property  in  the  land,  unless  a  ques- 
tion of  that  kind  be  raised  by  a  plea 
and  a  traverse  thereon.  Ibid.  357.  And 
a  recovery  in  any  one  suit,  upon  issue 
joined  on  matter  of  title,  is  equally  con- 
clusive upon  the  subject-matter  of  such 
title ;  and  a  finding  upon  title  in  tres- 
pass not  only  operates  as  a  bar  to  the 
future  recovery  of  damages  founded  on 
the  same  inquiry,  but  also  ojierates  by 
way  of  estoppel  to  any  action  for  an 
injury  to  the  same  supi)osed  right  of 
possession.  Ibid.  354.  The  issue  upon 
a  plea  of  liberum  tenementum  raises  a 
question  of  title.  Forsaith  v.  Clogston, 
3  N.  H.  Rep.  403.".  See  also  Bennett 
V.  Holmes,  1  Dev.  &  Batt.  486.  In 
some  States,  a  judgment  in  an  action  of 
trespass,  upon  the  issue  of  liberum  tene- 
mentum, has  been  held  admissible  in  a 
subsequent  action  of  ejectment  between 
the  same  parties.  See  Hoey  v.  Furman, 
1  Penn.  St.  295  ;  Kerr  d.  Chess,  7  Watts, 
371  ;  Foster  v.  McDivit,  9  Id.  341,  349  ; 
Meredith  v.  Gilpin,  6  Price,  146.  As 
to  the  effect  of  a  judgment  in  ejectment, 
as  regulated  by  the  Revised  Statutes  of 
New  York,  see  Beebe  v.  Elliott,  4  Barb. 
457. 


238  THE   LAW   OF   CONTRACTS.  [PART  II. 

an  instrument  under  which  title  to  the  chattels  is  claimed, 
and  this  is  found  to  be  fraudulent  and  void,  is  the  judgment 
in  this  case  conclusive  as  to  all  questions  of  pro)3crty  or  title 
between  the  same  parties,  under  that  instrument,  and  in 
relation  to  all  the  property  which  the  instrument  purports  to 
transfer.  Here,  too,  the  authorities  are  directly  antago- 
nistic, (r) 

So  far  as  we  can  venture  to  state  rules  which  may  deter- 
mine these  difficult  questions,  w^e  should  say  that  "  the  {nat- 
ter in  issue"  is  either  that  which  the  record  and  the  plead- 
ings show  clearly  to  be  so,  or  else  a  question  which  extrinsic 
evidence  fehows  to  have  been  actually  tried,  and  shows  also 
to  have  been  absolutely  essential  to  the  case,  in  so  much  that 
the  answer  to  it  decided  the  case,  and  if  it  had  not  been  con- 
tested the  case  could  not  have  been  tried.  Farther  than  this 
we  should  not  be  willing  to  go.  And,  therefore,  we  should 
say  that  the  judgment  in  the  supposed  case  of  trover  should 
not  be  conclusive  upon  the  questions  which  might  be  raised 
in  other  cases  as  to  the  validity  of  the  instrument,  and  the 
title  it  gave.  And  we  should  incline  also  to  the  opinion  that 
the  judgment  in  the  supposed  case  of  trespass  quare  clausum 
would  be  no  bar  to  a  writ  of  entry. 

It  is  said  that  the  former  judgment  must  have  been  be- 
tween the  same  parties ;  and  for  this  rule  there  seems  to  be 
good  reason  as  well  as  authority,  (s)  It  has  also  been  held 
the  same  parties  must  stand  in  the  same  position,  as  plaintiff' 
and  defendant.  It  is  obvious  that  sometimes  this  must  be 
necessary  to  constitute  the  question  the  same  ;  and  it  is  only 
then  that  the  rule  can  apply,  (t) 

(r)  Sec  King  v.  Chase,  15  N.  II.  9,  stance  against  a  sheriff  or  his  (Icpiity, 

cited  supra,  n.  (o),  and  Doty  v.  Brown,  for  the  acts  of  the  deputy,  a  jwdgincnt 

4  Comst.  71,  cited  supra,  n.  (n).  in  favor  of  cither  would  be  a  liar  to  a 

(s)  Tliis  is  not  always  true  ;  for  where  second  action  for  the  same  cause  against 

a  cause  of  action  is  such  that  more  than  the  other.     See  King  v.  Chase,  15  N. 

one  may  sue,  a  judgment  in  an  action  H.  R.  9.     And  in  Parkhurst  y.  Sumner, 

brouglit  by  one  is  a  bar  to  an  action  by  23  Verm.  538,  it  was  held,  that  all  mat- 

thc  other.     Thus,  if  a  consignor  sue  a  tcrs  which  might  have  been  urged  by 

carrier  for  goods,  and  the  latter  has  a  the  party  before   the   adjudication  arc 

verdict  and  judgment. on  a  plea  of  not  concluded  by  the  judgment,  as  to  the 

guilty,  tlic  consignee  "cannot  maintain  princii)al  parties,  and  all  privies  in  in- 

another   action    for    the    same    goods,  tcrest,   or   estate;   and    among    privies 

Green    v.   Clark,    5   Denio,   497.      So  arc  those  who  are  holden  as  bail  for  the 

where  a  plaintift'  may  bring  his  action  party. 

.igainst  cither  of  two  persons,  as  for  in-        {/)  Sec  ante,  p.  231,  232,  and  n.  (/<). 


CII.  III.]  DEFENCES.  ,  239 

It  may  be  added  that  no  prior  judgment  is  a  bar  to  a 
subsequent  action,  if  it  be  shown  that  the  judgment  was  ob- 
tained by  a  mistake  on  the  part  of  the  plaintifT,  which  pre- 
vented him  from  trying  the  question ;  as  an  error  in  respect 
to  the  character  of  the  action,  or  a  fault  in  the  pleading,  (m) 


SECTION  XL 
OF   SET-OFF. 

Where  two  parties  owe  each  other  debts  connected  in 
their  origin  or  by  a  subsequent  agreement,  the  balance  only 
is  the  debt,  and  he  to  whom  it  is  due  should  sue  only  for 
that ;  and  if  he  sue  for  more,  the  opposite  debt  may  be  offer- 
ed in  evidence,  reducing  the  claim  of  the  plaintiff  to  the 
balance.  But  where  the  opposite  debts  or  accounts  are  not 
so  connected,  each  constitutes  a  distinct  debt,  for  which  suit 
may  be  brought.  But  such  debts  or  accounts  may  be 
balanced  by  setting-  off  one  against  the  other ;  at  law  or  in 
equity.  The  law  of  set-off  is  very  much  regulated  by  statute 
in  this  country  ;  and  we  do  not  propose  to  dwell  upon  the  spe- 
cial provisions  of  any  of  the  State  statutes.  But  these  gene- 
rally contain  many  principles  in  common,  and  although, 
strictly  speaking,  set-off  may  not  be  a  part  of  the  common 
law,  {v)  yet  some  rules  and  principles  have  been  established 
by  usage  and  adjudication. 

(u)  Agnew  ?;.  McElroy,  10  Sm.  &  Mar.  bottomry  bond,  seized  by  an  attaching 

532 ;  Johnson  r.  White,  13  Sm.  &  Mar.  officer,  it  was  held,  that  that  judgment  to 

584.     The  former  decision  must  have  be  good  in  bar  of  an  action  of  trover 

beenon  the  merits,  or  the  judgment  must  for   the  vessel    must  be   pleaded   and 

be  such  that  it  miglit  have  been.    Dixon  v.  aveiTcd,  and  proved  to  have  been  upon 

Sinclear,  4  Verm.  354  ;  Estill  v.  Yaul,  the  merits  and  to  have  been  rendered  in 

2  Serg.  467  ;  N.  E.  Bank  v.  Lewis,  8  Pick,  a  suit  between  privies  in  interest.  Grce- 

113  ;  Lane  v.  Harrison,  6  Munf.  573  ;  ly  v.  Smith,  3  W.  &M.  236. 
McDonald  i\   Eainor,  8  Johns.  442 ;        (v)  The  defence  of  set-off.  strictly  so 

Lampen  v.  Kedgewin,   1    Mod.   207  ;  called,  is  purely  the  creature  of  statute. 

Knox  V.  Waldoborough,  5  Greenl.  185  ;  Stat.  2  Geo.  2,  c.  22,  s.  13,  made  pcr- 

Bridge  v.  Sumner,  I  Pick.  371  ;  Mos-  petual  by   8   Geo.  2,  c.  24,  s.   4,  and 

by  V.  Wall,  23  Mississippi,  81.     And  which,   with   some    modifications,   has 

where  judgment  was   rendered  in   re-  been  generally  adopted  in  the  United 

plevin  against  a  plaintiff,  by  nonsuiting  States,  (sec  Meriwether  v.  Bird,  9  Geor- 

him  in  a  case  in  which  he  had  replevied  gia,  594,)   provides,  "that  where  there 

a  vessel  alleged  to  be  his  by  virtue  of  a  are  mutual  debts  between  the  plaintiff 


240 


THE   LAW   OF    CONTRACTS. 


[part  II. 


The  law  of  set-ofF  is  quite  similar  to  the  compensation  of 
the  civil  law  ;  {lu)  not  as  we  think  because  it  is  borrowed 
from  it,  but  because  both  rest  on  similar  principles  of  com- 
mon sense  and  common  justice.  And  although  in  the 
details  they  differ  much,  the  civil-law  doctrines  can  be 
applied  to  the  law  of  set-oflj  not  only  for  general,  but  some- 
times for  particular  illustration. 

Set-off  has  been  well  defined,  as  a  mode  of  defence  by 
which  the  defendant  acknowledges  the  justice  of  the  plain- 
tiff's demand,  but  sets  up  a  demand  of  his  own  against  the 
plaintiff,  to  counterbalance  it,  in  whole  or  in  part,  [x) 

A  demand  founded  on  a  judgment  may  be  set  off,  or  upon 
a  contract,  if  it  could  be  sued  in  indebitatus  assumpsit,  debt, 
or  covenant,  (t/)  But  if  it  arise  ex  delicto,  and  can  be  sued 
only  in  trespass,  replevin,  or  case,  it  is  not  in  general  capable 
of  set-off;  (z)  nor  is  it  if  recoverable  only  by  bill  in  equity,  [a) 

Courts  usually  permit  judgments  to  be  set  off  against  each 
other,  on  motion,  when  such  set-off  is  equitable,  even  if  the 
parties  are  not  the  same,  [h)  whether  the  statute  expressly 


and  defendant,  or,  if  either  party  sue  or 
be  sued  as  executor  or  administrator, 
where  tlicre  arc  mutual  debts  between 
tlie  testator  or  intestate  and  either  par- 
ty, one  debt  may  be  set  against  the 
other,  and  such  matter  may  be  given  in 
evidence  upon  the  general  issue,"'  or 
pleaded  in  bar,  as  the  nature  of  the  case 
shall  require,  so  as  at  the  time  of  his 
pleading  the  general  issue,  where  any 
such  debt  of  the  plaintitf,  his  testator  or 
intestate  is  intended  to  be  insisted  on 
in  evidence,  notice  shall  be  given  of 
the  particular  sum  or  debt  so  intended 
to  be  insisted  on,  and  upon  what  ac- 
count it  became  due,  or  otherwise  such 
matter  shall  not  be  allowed  in  evidence 
upon  such  general  issue."  The  object 
of  these  statutes  was  to  prevent  cross- 
acii6ns  between  tlie  same  parties.  Is- 
berg  V.  Eowden,  22  Eng.  Law  &  Eq.  11. 
551.  Courts  of  equity  have  power  at 
common  law,  indej)endent  of  any  sta- 
tute, to  order  a  set-ofF  of  debts  in  certain 
cases.     See  2  Story's  Eq.  Jur.  eh.  38. 

(w)  Domat,  pt.  1,  b.  4,  tit.  2,  s.  1  ; 
1  Ersk.  Ins.  b.  3,  tit.  4,  s.  5 ;  Tothier, 
Traite  dcs  Obligations,  pt.  3,  cli.  4.  It 
has  frequently  been  said  in  America, 
tliat  as  the  doctrine  of  set-oft'  was  bor- 


rowed from  the  civil  law,  it  should  be 
interpreted  by  the  same  principles  of 
construction.  See  Meriwether  v.  Bird, 
9  Georgia,  594 ;  per  Kent,  J.,  in  Car- 
penter V.  Butterfield,  3  Johns.  Cas. 
153. 

(.r)  Barbour  on  Set-ofF,  p.  17. 

(y)  Hutchinson  i'.  Sturges,  Willes, 
2G1  ;  Howlet  v.  Strickland,  Cowper, 
56  ;  Dowsland  v.  Thompson,  2  Black. 
K.  911. 

(r)  Huddersfield  Canal  Co.  v.  Buck- 
ley, 7  T.  II.  47  ;  Sapsford  v.  Fletcher,  4 
T.  R.  512;  Bull.  N.  P.  181  ;  Freeman 
V.  Hyett,  1  Black.  394  ;  Dean  v.  Allen, 
8  Johns.  390;  Gibbes  v.  Mitchell,  2 
Bay,  351.5 

(a)  Gilchrist  v.  Leonard,  2  Bailey, 
135  ;  Sherman  v.  Ballou,  8  Cow.  304. 

{h)  Barker  v.  Braham,  3  Wils.  39C ; 
Dennie  v.  Elliott,  2  II.  Bl.  587  ;  Schcr- 
merliorn  v.  Schermerliorn,  3  Caines, 
190  ;  Brewcrton  v.  Harris,  1  Joiins. 
145  ;  Turner  v.  Satterlee,  7  Cow.  481  ; 
Story  V.  Patten,  3  Wend.  331 ;  Graves 
V.  Woodbury,  4  Hill,  559 ;  Goodenow 
r.  Buttrick,  1  Mass.  140  ;  Makepeace  v. 
Coatcs,  8  Mass.  451 ;  Barrett  v.  Barrett, 
8  Pick.  342  ;  Gould  v.  Parlin,  7'Greenl. 
82  ;  Wright  v.  Cobleigh,  3  Fost.  32.    In 


CH.   III.]  DEFENCES.  241 

allow  this  or  not;  but  it  is  a  matter  within  their  discre- 
tion, (c)  and  is  determined  by  the  justice  of  the  case.  There- 
fore it  will  not  be  permitted  against  a  bond  fide  assignee  for 
value,  {d)  Nor  if  the  defendant  is  in  execution  on  the  judg- 
ment, (e)  for  that  is,  in  general,  a  satisfaction  of  it.  Or  if 
having  been  imprisoned,  he  has  been  discharged  by  his  cre- 
ditor, even  if  it  was  not  the  intention  of  the  creditor  to  dis- 
charge the  debt.  (/)  But  if  he  escapes,  or  is  released  from 
imprisonment  under  an  insolvent  act,  which  does  not  dis- 
charge the  debt,  the  judgment  may  be  set  olT.  («■)  And,  in 
the  exercise  of  their  discretion,  courts  usually  permit  the 
judgments  recovered  in  other  courts  to  be  set  off.  (h)  And 
not  only  the  original  judgment  creditor  may  so  use  it,  but  an 
absolute  assignee  for  value  may  make  this  use  of  the  judg- 
ment. {%)  Nor  is  it  material  on  what  ground  of  action  the  judg- 
ment was  founded.  And  if  the  judgment  which  it  is  desired  to 
set  off  can  be  enfoirced  by  him  who  would  so  use  it,  against 
the  party  who  has  the  judgment  to  be  satisfied  by  the  set- 
off, this  is  sufficient ;  and  therefore  it  is  not  necessary  that 
the  judgments  be  in  the  same  rights,  or  that  the  parties  on 
the  record  be  the  same,  [j)     So  costs  may  be  set  off,  either 

this  last  case  it  was /ie/c?,  1.  That  courts  (e)  Burnaby's    case,    Strange,    653; 

of  law  have  power  to  set  off  mutual  Foster  v.  Jackson,   Hobart,  52  ;  Hora 

judgments.     2.  The  set-off  is  made  be-  v.  Horn,  Ambler,  79;  Cooper  v.  Biga- 

tween  the  real  and  equitable  owners  of  low,    1    Cow.  56  ;  Taylor  v.  Waters,  5 

the  judgment,  and  not  between  the  no-  M.  &  S.  103  ;  Jaques  v.  Withy,  1  T.  R. 

minal    parties.      3.   If   the    defendant,  557.     But  see   Peacock   v.    Jeffery,    1 

against  whom  a  judgment  is  recovered,  Taunt.  426  ;  Simpson  v.  Hanley,  1  M. 

is  the  assignee  and  equitable  owner  of  &  S.  C96. 

an  ascertained  part  of  a  judgment  reco-  (/)  Boucher  v.  Holley,  3  Wend.  184  ; 
vered  against  the  plaintiff,  in  the  name  Yates  v.  Van  Eensselaer,  5  Johns.  364. 
of  another  person,  that  part  may  be  set  (g)  Cooper  v.  Bigalow,  1  Cowen,  206. 
off  against  the  plaintiff's  judgment.  (A)  Eweny.  Terry,  8  Cow.  126;  Scher- 
4.  The  application  to  set-off  judgments  merhorn  v.  Schcrmcrhorn,  3  Caines, 
must  be  made  in  the  court  where  the  190  ;  Duncan  v.  Bloomstock,  2  McCord, 
judgment  was  recovered  against  the  318;  Noble  v.  Howard,  2  Ilayw.  14; 
party  who  makes  the  application.  5.  Best  v.  Lawson,  1  I\Iiles,  1 1  ;  Barker  v. 
To  authorize  a  set-off  of  judgments  it  Braham,  2  Black.  11.  869,  3  Wils.  396; 
is  not  necessary  that  either  of  the  suits  Hall  v.  Ody,  2  Bos.  &  Pul*.  28  ;  Simp- 
shall  be  pending.  son  r.  Hart,  1  Johns.  Ch.  91,  14  Johns. 

(c)  Burns  v.  Thornburgh,  3  Watts,  63  ;  Bristowe  v.  Necdham,  7  I\I.  &.  G. 
78;  Tolbert  v.  Harrison,  1  Bailey,  599  ;  648;  Brewerton  v.  Harris,  1  Johns.  144. 
Coxc  V.  State  Bank,  3  Halst.  172";  Scott  (/)  Mason  v.  Knowlson,  1  Hill,  218. 
V.  Rivers,  1  Stew.  &  Port.  24;  David-  (j)  Hutchins  v.  Riddle,  12  N.  II.  R. 
son  V.  Geoghagan,  3  Bibb,  233  ;  Smith  464  ;  Shapley  v.  Bellows,  4  N.  H.  R. 
V.  Lowden,  1  Sandf  696.  351  ;  Goodenow   v.   Buttrick,    7  Mass. 

(d)  Makepeace  v.   Coates,   8    Mass.     140 ;  Dennie  i'.  Elliott,  2  II.  Bl.  587. 
45i  ;  Holmes  v.  Robinson,  4  Ham.  90. 

VOL.    II.  21 


242 


THE   LAW   OF   CONTRACTS. 


[part  II. 


against  costs  alone,  or  against  debt  and  costs,  (k)  After 
some  fluctuations,  it  seems  to  be  settled  as  the  better  opinion 
that  this  set-off  will  be  made  without  regard  to  the  attorney's 
lien,  on  the  ground  that  this  extends  only  to  the  net  amount 
due  after  the  equities  between  the  parties  are  adjusted.  (/) 

Judgments  will  be  set  off  on  motion,  because  the  question 
on  which  they  depend  has  been  tried  and  settled,  and  the 
claim  established,  or  admitted,  (ni)  But  other  claims  than 
those  resting  on  judgments  must  be  pleaded,  or  filed  in  such 
manner  as  the  statutes  or  rules  of  court  direct,  with  sufficient 
notice  for  the  plaintiff  to  deny  and  contest  them  if  he  chooses 
to  do  so.  For  not  even  the  amount  of  a  note  will  be  set  off, 
unless  the  plaintiff  had  the  opportunity  to  contest  it,  nor 
even  the  amount  of  a  verdict  recovered,  for  it  may  be  that 
this  will  be  set  aside,  (w) 

The  amount  due  on  the  condition  of  a  bond  may  gene- 
rally be  pleaded  in  set-off,  but  not  the  penalty ;  for  this  may 
be  reduced  both   at  law  or  in  equity,  (o)     But  if  the  full 


(Ic)  Nunez  y.  Modigliani,  1  H.  Bl.  217. 
The  old  practice  was  otherwise.  See 
Butler  I'.  Inneys,  2  Strange,  891.  But 
the  rule  stated  in  the  text  is  now  firmly 
established.  James  v.  Raggett,  2  B.  & 
Aid.  776  ;  Thrustout  v.  Craster,  2  Black. 
R.  826 ;  Howell  v.  Harding,  8  East, 
Thrustout  V.  Craster,  2  Blacic.  E.  826  ; 
362;  Lang  v.  Webber,  1  Price,  375; 
Kurd  V.  Fogg,  2  Foster,  98.  But  if  this 
set-ofF  of  costs  is  sought  by  motion  to 
the  court,  it  will  be  granted  or  not,  ac- 
cording to  the  justice  of  the  case.  Gi- 
hon  r.  Fryatt,  2  Sandf.  638.  In  Mc- 
AVilliams  v.  Hopkins,  1  Whart.  275,  it 
was  held  that  a  judgment  for  costs  ob- 
tained against  an  administrator  plain- 
tiff in  the  District  Court  for  the  City 
and  County  of  Pliiladelphia,  and  assign- 
ed by  the  defendant  there  to  A.,  cannot 
be  set  off  against  a  judgment  for  da- 
mages obtained  by  such  administrator 
against  A.  in  the  Supreme  Court. 

(/)  Roberts  v.  Mackoul,  cited  in 
Thrustout  V.  Craster,  2  Black.  R.  826  ; 
Schoole  V.  Noble,  1  H.  Bl.  23  ;  Nunez 
V.  Modigliani,  1  11.  Bl.  217;  Vaughan 
V.  Davies,  2  H.  Bl.  440 ;  Dennie  v. 
Elliott,  2  H.  Bl.  587  ;  Hall  v.  Ody, 
2  B.  &  P.  28  ;  Emdin  v.  Darley, 
4  B.  &  P.  22;  Lane  v.  Pearce,  12  Price, 
742,752;  Taylor  v.  Popham,  15  Ves. 


72  ;  Ex  parte  Rhodes,  Id.  539  ;  Mohawk 
Bank  v.  Burrows,  6  Johns.  Ch.  317  ; 
The  People  r.  New  York  Common 
Picas,  13  Wend.  649  ;  Spence  v.  White, 
1  Johns.  Cas.  102;  Porter  v.  Lane,  8 
Johns.  357  ;  Martin  v.  Hawks,  15  Johns. 
405.  But  see  Mitchell  v.  Oldfield,  4  T. 
R.  123  ;  Randle  v.  Fuller,  6  T.  R.  456  ; 
Glaister  v.  Hewer,  8  T.  R.  69  ;  Read  v. 
Dupper,  6  T.  R.361  ;  Middlcton  v.  Hill, 

1  M.  &  S.  240  ;  Harrison  v.  Bainbridge, 

2  B.  &  C.  800 ;  Shapley  v.  Bellows,  4 
N.  H.  R.  353  ;  Dunklee  v.  Locke,  13 
Mass.  525  ;  Barrett  v.  Barrett,  8  Pick. 
342  ;  Ainslie  v.  Boynton,  2  Barbour, 
258;  Rider  v.  Ocean  Ins.  Co.  20  Pick. 
259.  And  see  note  to  Schermcrhorn  v. 
Schermurhorn,  3  Caines,  190. 

(m)  And  it  is  only  such  a  judgment 
that  can  be  set  off  on  motio».  The  judg- 
ment must  be  conclusive  upon  the  party, 
rendered  in  a  court  which  had  jurisdic- 
tion, and  the  decision  must  have  been 
final,  and  not  appealed  from.  See  Har- 
ris V.  Palmer,  5  Barbour,  105;  The 
People  V.  Judges,  6  Cowen,  598.  And 
see  Willard  v.  Fox,  18  Johns.  497; 
Wcatherrcd  v.  Mays,  1  Texas,  472. 

(«)  Bagg  V.  Jefferson,  C.  P.  10  Wend. 
615  ;  Cobb  i-.  Haydock,  4  Day,  472. 

(o)  Burgess  ?•.  Tucker,  5  .Johns.  105  ; 
Nedriflc  v.  Hogan,  2  Burr.  1024. 


CH.   III.]  DEFENCES.  243 

amount  of  a  bond  is  agreed  upon  as  liquidated  damages,  it 
may  be  set  off.  (p) 

One  important  and  very  general  principle  in  the  law  of 
set-off  is,  that  the  demand  must  be  due  to  the  party,  or  the 
claim  must  be  possessed  by  him,  in  Ids  own  right,  {q)  But 
this  may  be,  either  as  original  creditor  or  payee,  or  as  owner 
by  assignment.  It  seems  indeed  to  be  settled  that  debts 
held  in  the  right  of  another  can  be  set  off  neither  at  law  nor 
in  equity.  But  a  question  sometimes  exists  as  to  the  appli- 
cation of  this  rule.  Whether  a  party  holds  a  claim  or  debt 
for  this  purpose  in  his  own  right  may  perhaps  be  determined 
by  two  tests ;  first,  can  he  sue  for  it  in  his  own  name,  with- 
out setting  forth  as  the  foundation  of  his  right  some  repre- 
sentative or  vicarious  character  ;  and  secondly,  if  he  sued  for 
and  recovered  the  debt,  would  he  have  a  right  to  use  it  at 
his  own  pleasure,  and  for  his  own  benefit,  or  has  he  a  valid 
lien  on  it  for  his  own  security.  The  rights  to  the  two  de- 
mands, one  of  which  is  to  be  balanced  against  the  other  by 
set-off,  must  be  similar  rights.  Thus,  if  an  executor  sues  as 
executor,  the  defendant  may  set  off  a  debt  due  from  the  tes- 
tator ;  (r)  if  he  sues  for  a  cause  of  action  accruing  after  the 
testator's  death,  and  does  not  describe  himself  as  executor, 
the  defendant  cannot  set  off  a  debt  due  to  him  from  the  tes- 
tator ;  (5)  he  cannot  himself  set  off  a  debt  due  to  him  per- 
sonally against  a  claim   on  the  estate  of  the  testator  made 

(p)  Fletcher  v.  Dyche,  2  T.  R.  32;  176;   Burton  v.   Chinn,   Hardin,   252; 

Duckworth  v.  Alison,  1  M.  &  W.  412.  Mellen  v.  Boarman,  13   S.  &  M.  100  ; 

(7)  This  is  too  universally  settled  to  Shaw  v.   Gookin,    7  N.    H.   16.     And 

need  the  citation  of  adjudged  cases.  see  Stuart  v.  Commonwealth,  8  Watts, 

(r)  But  if  the  defendant  has  purchas-  74.     In   an   action   by  an   executor,  a 

ed  a  debt  against  an  intestate,  since  Ms  legacy  bequeathed  the  defendant  cannot 

death,  it  has  been  held  that  he  cannot  be  set  oft",   although  the   executor  has 

set  it  oft"  against  an  action  by  the  adrai-  funds  to  pay  the  legacy.     Robinson  v. 

nistrator  to  recover  a  debt  due  the  in-  Robinson,  4  Harring.  418;   Sorrelle  v. 

testate.    Root  v.  Taylor,  20  Johns.  137  ;  Sorrelle,  5  Ala.  245.     But  if  the   exe- 

Whitehead  v.  Cade,  1  How.  [Miss.]  95.  cutor  is  sued  for  a  debt  due  from  his 

(s)  Kilvington  v.  Stevenson,  Willes,  testator  in  his  lifetime,  he  may  set  oft'  a 

264,  note;  Tegctmeyer  ?;.  Lumley,  Id. ;  debt  which   has  accrued  due  from  the 

Schofield   V.   Corbctt,  6  Nev.   &   Man.  plaintifi"  to  him  as  executor  since  the 

527  ;  Houston  v.  Robertson,   4   Camp,  death  of  the  testator.     Mardall  r.  Thel- 

342;  Mereein   v.   Smith,   2  Hill,    210;  lusson,  14  Eng.  Law  &  Eq.  R.  74.     So 

Fry  V.  Evans,  8  Wend.  530  ;  Dale  v.  where  an  executor  is  sued  for  a  debt 

Cook,  4  Johns.  Ch.  13  ;  Colby  v.  Colby,  created  by  himself  as  executor,  he  may 

2  N.  H.  419  ;  Wolfersberger  v.  Bucher,  set  off' a  debt  due  from  the  plaintift'  to 

10  S.  &  R.  10;  Brown  v.  Garland,  1  the  testator  in  his  lifetime.    Blakcsley 

Wash.  221  ;  Rapier  v.  Holland,  Minor,  v.  Smallwood,  8  Q.  B.  538. 


244 


THE   LAW   OP   CONTRACTS. 


[PART  n. 


against  him  as  executor;  (t)  nor  if  he  be  sued  for  his  own 
debt  can  he  set  off  a  debt  due  to  him  as  executor,  (w)  So  a 
debt  due  to  a  man  in  right  of  his  wife  cannot  be  set  off  in  an 
action  against  him  on  his  own  bond,  (v)  Nor  can  a  debt 
contracted  by  the  wife,  before  marriage,  be  set  off  in  an 
action  brought  by  the  husband  alone ;  (iv)  unless  he  has  by 
his  promise  to  pay  it  made  it  his  own  debt.  So  in  a  suit 
either  at  law  or  in  equity  against  partners,  the  demand  of 
one  of  the  defendants  against  the  plaintiff  cannot  be  set 
off  (x) 

It  sometimes  happens  that  a  demand  may  be  set  off,  due 
from  the  person  actually  and  beneficially  interested  in  the 
suit,  although  it  is  brought  for  his  benefit  by  one  who  has 
the  legal  interest,  and  is  therefore  plaintiff  of  record,  but  has 
no  other  interest,  (y) 


(t)  Nor  vice  versa.  Grew  v.  Burditt, 
9  Pick.  265  ;  Snow  v.  Conant,  8  Verm. 
308  ;  Cummins  v.  Williams,  5  J.  J. 
Marsh.  384 ;  Banton  v.  Hoomes,  1  A. 
K.  Marsh.  19;  Harbin  v.  Levi,  6  Ala. 
399.  In  an  action  against  an  executor 
to  recover  a  legacy  given  to  the  plain- 
tiff's wife,  tlie  executor  may  set  off  a 
bond  given  by  the  plaintiff  himself  to 
the  testator  in  his  lifetime.  Lowraan's 
Appeal,  3  Watts  &  Serg.  349. 

(m)  Thomas  v.  Hopper,  5  Ala.  442. 

(v)  Paynter  r.  Walker,  Bull.  N.  P. 
179.  In  an  action  by  husband  and  wife 
for  a  legacy  left  to  the  wife  "  for  her 
own  use,"  the  executor  cannot  set  off 
a  debt  due  from  the  husband  to  the 
testator  in  his  lifetime.  Jamison  v.  Bra- 
dy; 6  S.  &  R.  466.  Otherwise  if  the  leg- 
acy is  given  to  the  wife  not  to  her  sepa- 
rate use.  Lowman's  Appeal,  3  Watts 
&  S.  349.  Neither  can  the  husband's 
debt  be  set  off  against  the  wife's  dis- 
tributive share  of  her  father's  estate, 
when  the  parties  have  been  divorced ; 
and  although  such  divorce  was  after  the 
intestate's  death.  Fink  v.  Hake,  6 
Watts,  131.  In  a  suit  by  husband  and 
wife  for  rent  of  the  wife's  premises,  the 
defendant  may  set  off  a  demand  against 
the  husband  alone.  Pcrguson  v.  Lo- 
throp,  15  Wend.  625.  But  see  Naglee  v. 
Ingersoll,  7  Penn.  St.  185,  where  it  was 
held  that  a  debt  due  by  a  husband,  or 
one  which  lie  had  agreed  to  pay,  could 
not  be  set  off  against  a  claim  for  rent 
due  to  his  wife's  separate  estate,  although 


she  had  authorized  him  to  receive  the 
rents  without  accounting. 

(w)  Burrough  v.  Moss,  10  B.  &  C. 
558 ;  Wood  v.  Akers,  2  Esp.  594. 

(x)  The  decisions  are  uniform  that  a 
joint  debt  cannot  bo  set  off  against  a 
separate  debt,  nor  vice  versa.  Woods  v. 
Carlisle,  6  N.  H.  27  ;  Walker  v.  Leigh- 
ton,  11  Mass.  140;  Howe  v.  Sheppard, 
2  Sumner,  409 ;  McDowell  v.  Tyson, 
14  S.  &  R.  300  ;  Bibb  v.  Saunders,  2 
Bibb,  86 ;  Armistead  v.  Butler,  1  H.  & 
M.  176  ;  Palmer  v.  Green,  6  Conu.  14  ; 
Emerson  v.  Baylies,  19  Pick.  59  ;  War- 
ren V.  Wells,  1  Met.  80.  And  see  Grant  u. 
Royal  Exch.  Ass.  Co.  5  M.  &  S.  439. 
If  there  is  an  express  agreement  with 
a  person  dealing  with  a  firm,  tliat  the 
debts  severally  due  from  the  members 
of  the  firm  to  that  person  shall  be  set 
off  against  any  demands  which  the  firm 
may  have  jointly  on  him,  such  agree- 
ment is  binding,  and  the  set-off  may  bo 
allowed.  Kinnerley  v.  Hossack,  2 
Taunt.  128;  Hood  v.  Riley,  3  Green, 
127.  Sec  Lovcl  v.  WJiitridge,  1  Mc- 
Cord,  7 ;  Evernghim  t'.  Ensworth,  7 
Wend.  326.  So  if  the  surviving  part- 
ner sue  for  a  debt  due  the  firm,  the  de- 
fendant may  set  off  a  debt  due  from 
such  partner  alone.  Holbrook  v.  Lack- 
ey,  13  Met.  132.  But  see  Meader  v. 
Scott,  4  Verm.  26;  Lewis  v.  Culbert- 
son,  11  S.  &  R.  48. 

(y)  See  Campbell  v.  Hamilton,  4 
Wash.  C.  C.  R.  93.  But  see  infra,  nn. 
(«),  (0). 


en.  iii.J 


DEFENCES. 


245 


If  there  is  more  than  one  defendant,  neither  one  can  set 
off  a  demand  due  to  himself  alone,  but  all  may  set  off  de- 
mands due  to  all  jointly.  Nor  can  a  single  defendant  set  off 
a  debt  due  to  him  from  a  part  only  of  two  or  more  plain- 
tiffs, (c) 

No  demand  can  be  pleaded  in  set-off,  unless  it  be  reason- 
ably certain.  But  by  this  is  meant  to  exclude  only  those 
cases  in  which  a  jury  must  determine  the  amount  of  damages, 
by  their  own  estimate  or  opinion,  and  not  by  mere  calcula- 
tion, if  they  find  the  claim  valid.  In  general,  demands  may 
be  set  off,  which  are  for  liquidated  damages,  meaning  thereby 
when  their  amount  is  specific,  or  is  directly  and  distinctly 
ascertainable  by  calculation  ;  and  also  all  those  which  usually 
may  be  sued  for  and  recovered  under  the  common  counts,  (a) 


(z)  Ross  V.  Knight,  4  N.  H.  R.  236  ; 
Henderson  v.  Lewis,  9  S.  &  R.  379  ; 
Banlcs  i\  Pike,  15  Maine,  268 ;  Fuller 
V.  Wright,  18  Pick.  403;  "Watson  v. 
Hensel,  7  Watts.  344  ;  Archer  v.  Dunn, 
2  Watts  &  Serg.  327;  Trammell  v. 
Harrell,  4  Pike,  602  ;  Jones  v.  Gilreath, 
6  Iredell.  338;  Vose  v.  Philbrook,  3 
Story,  335.  The  statutes  in  some  States 
are  different.  But  in  an  action  against 
principal  and  surety,  for  the  default  of 
the  principal,  a  debt  from  the  plaintiff 
to  the  principal  alone  has  in  some  cases 
been  allowed  to  be  set  off.  Brundridge 
1-.  Whitecomb,  1  Chip.  180;  Crist  v. 
Brindle,  2  Rawle,  121.  Sec  Lynch  v. 
Brag,  13  Ala.  773  ;  Mahurin  v.  Pear- 
son, 8  N.  H.  R.  539  ;  Prince  v.  Fuller, 
34  Maine,  122.  And  such  was  the  civil 
law.  2  Story's  Eq.  Jur.  s.  1442.  But 
see  "Warren  v.  "Wells,  1  Met.  80  ;  "Walk- 
er V.  Leighton,  11  Mass.  140.  So 
where  a  tax  collector  gives  a  joint  and 
several  bond  to  a  town,  with  sureties, 
and  then  sues  the  town  in  his  [own 
name,  on  an  order  of  the  town  to  him, 
the  town  may  set  off  money  which  the 
plaintiff  has  received  and  not  paid  over, 
in  breach  of  his  bond.  Donelson  v. 
Colerain,  4  Met.  430. 

(a)  This  rule  arises  from  the  words  of 
the  statute,  before  cited,  that  a  set-off  is 
allowed  in  cases  of  mutual  debts,  i.  c, 
claims  in  the  nature  of  a  debt ;  and  the 
same  rule  is  applied  to  both  parties. 
For  if  the  suit  is  brought  not  for  a  debt, 
but  for  unliquidated  damages,  no  de- 
fence of  set-off  can  be  allowed.    Hard- 

21* 


castle  V.  Nethcrwood,  5  B.  &  Aid.  93, 
which  was  an  action  for  not  indemnify- 
ing the  plaintiff  for  paying  the  defend- 
ant's own  proper  debt  ;  Hutchinson  v. 
Reid,  3  Camp.  329,  for  not  accepting  a 
bill  of  excliange  ;  Birch  v.  Depeyster,  4 
Camp.  385,  against  an  agent  for  not 
accounting;  Gillingham  v.  Waskett,  13 
Price,  434,  for  not  replacing  stock  ac- 
cording to  agreement ;  Warn  v.  Bick- 
ford,  7  Price,  550,  for  breach  of  a  cove- 
nant for  quiet  enjoyment ;  Attwool  v. 
Attwool,  18  Eng.  Law  &  Eq.  R.  386, 
for  breach  of  a  bond  to  indemnify  gene- 
rally ;  Castelli  u.  Boddington,  16  Eng. 
Law  &  Eq.  R.  127,  an  action  on  a  poli- 
cy of  insurance  for  an  average  loss. 
And  see  Cope  v.  Joseph,  9  Price,  155  ; 
Gordon  v.  Bowne,  2  Johns.  150:  Os- 
born  V.  Etheridgc,  13  Wend.  339,  a  suit 
by  a  tenant  against  his  landlord,  to 
recover  costs  of  the  defence  of  summary 
proceedings,  instituted  by  the  latter  ; 
Cooper  V.  Robinson,  2  Chitty,  161,  for 
not  indemnifying  plaintiff  from  certain 
taxes;  Wilmot  v.  Hurd,  11  Wend.  584, 
for  breacli  of  warrant}'  in  the  sale  of 
goods ;  Dowd  v.  Faucett,  4  Dev.  92, 
covenant  for  uncertain  damages.  More 
frequent  illustrations  exist  of  claims 
which  cannot  be  used  by  a  defendant  by 
way  of  set-off,  because  they  are  not  debts, 
within  the  statutory  meaning  of  that  word. 
Thus  it  seems  that  unliquidated  losses 
on  a  policy  of  insurance  cannot  be  made 
the  subject  of  set-off.  Thomson  v.  Red- 
man, 11  M.  &  W.  487  ;  Grant  i'.  lioyal 
Exch.  Ass.  Co.  5  M.  &  S.  437.    And 


246  THE  LAW  OF  CONTRACTS.         [PART  II. 

It  may,  perhaps,  be  doubtful,  when  compensation  for  part 
performance  of  a  contract  may  be  set  off  against  an  action 
for  breach  of  the  contract,  and  when  it  should  rather  be 
given  in  evidence  by  way  of  reduction,  or  when  it  can  only 
be  used  as  the  ground  of  a  cross  action,  (b)  This  must  de- 
pend upon  the  circumstances  of  the  case,  and  upon  the  pro- 
visions of  the  statute  in  the  State  where  the  action  is  tried. 

Set-off  should,  however,  be  discriminated  from  reduction, 
and  recoupment ;  to  both  of  which  it  bears  much  analogy, 
and  with  either  of  which  it  may  be  so  mingled  by  the  facts 
of  a  case  as  to  make  it  difficult  to  say  in  which  of  these  forms 
the  opposing  demand  should  be  brought  against  the  plain- 
tiffs action.  In  general,  a  defendant  may  deduct  from  the 
plaintiff's  claim  all  just  demands,  or  claims  owned  by  him,  or 
payments  made  by  him,  in  the  very  same  transaction,  or  even 
in  other  but  closely  connected  transactions.  They  must, 
however,  be  so  connected  as  fairly  to  authorize  the  defendant 
to  say  that  he  does  not  owe  the  plaintiff  on  that  cause  of 
action,  so  much  as  he  seeks,  and  not  that  he  ought  not  to 
pay  the  plaintiff  so  much,  because  on  another  cause  of  action 
the  plaintiff  owes  him.  If  he  can  so  present  and  use  his 
claims  he  diminishes  the  plaintiff's  claim  by  way  of  reduc- 
tion, (c)     Recoupment  we  consider  to  belong  rather  to  cases 

sec  Gumming  v.  Forester,  1   Id.  494.  arc  not  the  subject  of  set-ofF.    Peirce 

Nor  can  a  claim  for  tortiously  takinp;  v.  Boston,  3  Met.  520. 
the    defendant's    property  be    set    off.        {h)  As  to  the  right  of  the  defendant 

Hopkins  v.   Megquire,   35   Maine,   78.  to  reduce  the  plaintiff's  demand  in  the 

Neither  is  a  breach  of  a  covenant  for  cases  mentioned  ante,  p.  35,  n.  (rf),  see 

the  non-delivery  of  goods  according  to.  the  following  cases.    Bastcn  v.  Butter, 

contract  a  subject  of  sct-ofT.     Howlet  v.  7    East,   479  ;   Earnsworth  v.  Garrard, 

Strickland,  Cowp.  56  ;  Wright  w.  Smyth.  1  Campb.    38;   Denew  v.   Davercll,  3 

4  Watts  &  Scrg.  527.    Nor  a  breach  of  Campb.  451 ;  Mondel  v.  Steel,  8  M.  & 

a  guaranty  when  the  damages  are  un-  W.  858 ;  Heck  v.   Shener,  4   S.  &  R. 

certain.     Morlcy  v.  Inglis,  4  Bing.  N.  249;  Still  w.  Hall,  20  Wend.  51  ;  Hunt 

C.   58;    Crawford  v.   Stirling,   4    Esp.  v.    The   Otis    Company,   4   Met.   404; 

207.     Contra  if  the  damages  are  certain.  McAllister  z;.  Reab,  4  Wend.  483,  8  id. 

Collins  V.  Wallis,  11  J.  B.  Moore,  248.  109  ;  Britton  v.  Turner,  6  N.  H.  481. 
So  to  an  action  by  a  bank,  the  defend-        (c)  The  difference  between  allowing  a 

ant  cannot  set  off  his  stock  in  the  bank,  certain  defence  by  way  of  set-oj/',  and  by 

Harper  v.  Calhoun,  7  How.  [Miss.]  203 ;  way  of  reduction  of  damages,  although 

Whittington  v.  Farmers'  Bank,  5  II.  &  not  broad  is  yet  clear  and  well  defined. 

J.  489.     Nor  can  he  set  off  the  bills  of  A  few  instances  will  illustrate  the  appli- 

such  bank.   Ilallowell  Bank  v.  Howard,  cation  of  the  principle.     Thus,  in  as- 

13  Mass.  235.     A  note  payable  in  work  sumpsit  for  dyeing  goods,  the  defendant 

cannot  be  set  off  against  a  demand  paya-  may,  at  common  law,  show  that  there 

blc  in  cash.    Prather  v.  McEvoy,  7  Mis-  is  a  custom  of  the  trade  by  which  dama- 

souri,  598.     In  Massachusetts,   taxes  ges  done  the  goods  in  dyeing    shall 


en.  III.]  DEFENCES.  247 

where  the  same  contract  lays  mutual  duties  and  obligations  on 
the  two  parties,  and  one  seeking  remedy  for  the  breach  of  duty 
by  the  second,  the  second  meets  the  demand  by  a  claim  for 
a  breach  of  duty  against  the  first.  But  the  word  is  of  re- 
cent introduction,  and  is  not  used  with  uniformity  or  preci- 
sion. ((/)  The  essential  difference  between  recoupment  or 
reduction  on  the  one  hand,  and  set-off  on  the  other,  is  that 
in  set-off  the  ground  taken  by  the  defendant  is  that  ha  may 
owe  the  plaintiff  what  he  claims,  but  a  part  or  the  whole  of 
this  debt  is  paid  in  reason  and  justice  by  a  distinct  and  un- 
connected debt  which  the  plaintiff  owes  him. 

It  should  be  remarked  that  a  set-off  is  a  defence  which  the 
defendant  may  use  or  not  at  his  pleasure.  If  he  forbears 
doing  so,  this  in  no  way  impairs  his  right  to  establish  his 
claim  by  a  separate  action,  (e)  It  is,  however,  better  that  it 
should  be  settled  by  set-off,  when  that  can  properly  be  done, 
because  it  saves  both  expense  and  time  to  do  this.  And 
courts  have  censured  parties  for  not  pleading  a  demand  by 
way  of  set-off,  when  there  was  nothing  to  show  that  it  might 
not  have  been  made  perfectly  available  to  the  defendant  in 

be  deducted  from  the  price  of  dyeing,  expressed  by  defalk,  discount,  deduction, 
Baraford  w.  Harris,  1  Stark.  343.  So  a  reduction,  and  in  actions  of  tort  by  7niti- 
master  may  show  in  an  action  by  a  ser-  gatioii.  But  probably  the  definition  of 
vant  for  his  wages,  that  the  plaintiff  the  text  is  the  true  and  proper  one, 
agreed  to  deduct  therefrom  the  value  since  the  word  rccouper  in  the  original 
of  goods  lost  by  his  negligence.  Le  signifies  <o  c!(<  of/ajVi,  and  therefore  would 
Loir  r.  Bristow,  4  Campb.  134.  And  favor  the  definition  above,  and  Barbour 
see  Dobson  v.  Lockhart,  5  T.  R.  133 ;  on  set-off  is  in  favor  of  the  same  use 
Kinnerley  v.  Hossack,  2  Taunt.  170;  of  the  term.  It  is  foreign  from  the  pre- 
Cleworth  v.  Pickford,  7  M.  &  W.  314.  sent  chapter  to  examine  the  doctrine  of 
So  in  an  action  for  work  and  labor  and  recoupment  in  all  its  details, 
materials,  the  defendant  may  show  with-  (e)  Laing  v.  Chatham,  1  Camp.  252  ; 
out  pleading  any  set-off,  that  he  sup-  Minor  v.  Walter,  17  Mass.  237;  De 
plied  part  of  the  materials  himself.  New-  Sylva  v.  Henry,  3  I'ort.  132  ;  Baskerville 
ton  V.  Forster,  12  M.  &  W.  772;  Turner  v.  Brown,  2  Burr.  1229  ;  Himes  v.  Bar- 
V.  Diaper,  2  Mann.  &  Gr.  241.  And  nitz,  8  Watts,  39  ;  Garrow  f.  Carpenter, 
see  Dale  v.  SoUet,  4  Burr.  2133.  1  Port.  359.  The  civil  law  was  differ- 
{d)  The  doctrine  of  recoupment,  or  re-  ent.  2  Story's  Eq.  Jur.  §  1440.  In 
couper,  as  it  was  formerly  termed,  is  not  some  states  a  defendant  cannot  set  off 
a  new  one  in  the  common  law,  although  a  claim,  on  which  a  suit  is  then  pend- 
it  was  formerly  used  in  a  different  sense  ing  in  his  favor.  Lock  v.  Miller,  3 
from  that  alluded  to  in  the  text.  It  was  Stew.  &  Porter,  13.  In  others  the  con- 
fottnerly  used  to  signify,  as  it  is  now  in  trary  has  been  held.  Stroh  r.  Uhrich, 
many  courts,  and  decisions,  a  right  of  1  Watts  &  Serg.  57.  Neither  can  the 
deduction  from  the  amount  of  the  plain-  plaintiff  file  a  counter  set-off  to  the  de- 
tiff 's  claim,  either  from  part  payment,  fendant's  set-off.  Iludnall  v.  Scott,  2 
or  defective  performance  of  contract  on  Ala.  5G9 ;  Ulrich  v.  Berger,  4  Watts  & 
the  part  of  the  plaintiff,  or  from  any  Serg.  19. 
analogous  fact.    The  same  idea  was 


248 


THE   LAW   OF   CONTRACTS. 


[part  II. 


that  way.  For  set-off  is  in  the  nature  of  a  cross  action,  and 
is  substituted  for  that,  for  the  very  purpose  of  preventing 
unnecessary  litigation.  Therefore,  also,  only  those  demands 
can  be  set  off  for  which  an  action  might  be  brought  by  the 
defendant,  and  sustained.  If  it  be  barred  by  the  statute  of 
limitations,  or  otherwise  defeasible,  it  cannot  be  set  off.  (/) 

A  debt  is  not  properly  a  subject  of  set-off,  unless  it  existed 
when  the  plaintiff  brought  his  action,  and  at  that  time  be- 
longed to  the  defendant ;  but  it  may  have  become  the  de- 
fendant's after  the  cause  of  action  accrued  to  the  plaintiff. 
And  it  must  be  due  to  the  defendant  when  pleaded,  and  this 
should  be  alleged,  (g) 

An  agreement  to  pay  a  debt  in  cash,  or  in  any  specific 
way,  or  even  an  express  negative  of  set-off,  does  not,  in  general, 
deprive  the  defendant  of  paying  it  by  setting  off  a  debt  due 
to  himself,  (h) 

One  who  buys  goods  of  a  factor,  as  such,  and  is  sued  for 
the  price  by  the  real  owner,  cannot  set  off  a  debt  due  from 
the  factor ;  (i)  but  he  may  if  the  factor  sell  the  goods  as  his 


(/■)  Chappie  V.  Durston,  1  Cr.  &  J. 
1  ;  Gilchrist  v.  Williams,  3  A.  K.  Marsh. 
235  ;  Williams  v.  Gilchrist,  3  Bibb,  49  ; 
TurnbuU  v.  Strohecker,  4  McCord,  210  ; 
Jacks  V.  Moore,  1  Yeates,  391.  And  a 
debt  discharged  by  bankruptcy  or  insol- 
vency cannot  be  the  subject  of  a  set- 
off. Francis  v.  Dodsvvorth,  4  C.  B. 
202.  Neither  can  a  claim  which  the 
court  would  not  have  jurisdiction  to  try, 
if  an  action  had  been  brought  upon  it,  be 
allowed  in  set-off.  Piquet  v.  Cormick, 
Dudley,  20.  Nor  a  debt,  the  collection 
of  which  has  been  enjoined  in  Chancery. 
Key  V.  Wilson,  3  Humph.  405.  Nor  a 
note  which  the  defendant  holds,  but 
which  he  cannot  sue  in  his  own  name,  as 
a  note  not  negotiable.  Bell  v.  Ilorton, 
1  Ala.  413  ;  Carew  v.  Northrup,  5  Ala. 
367.  Nor  a  bond  which  has  been  can- 
celled, but  by  mistake.  Williams  v. 
Crary,  5  Cow.  368.  The  maker  of  a 
note  payable  to  A.  B.  or  bearer,  cannot 
set  off  against  one  who  sues  as  bearer, 
any  claim  against  A.  B.  or  other  person 
except  the  plaintiff.  Parker  r.  Kendall, 
3  Vermont,  540. 

((j)  Hardy  v.  Corlis,  1  Poster,  356; 
Dc'ndy  i'.  Powell,  3  M.  &  W.  442; 
Evans  V.  Prosscr,  3  T.  K.  186;  Eland 
V.  Karr,  1  East,  376 ;  Richards  v.  James, 


2  Exch.  471  ;  Rogerson  v.  Ladbroke, 
1  Bing.  93  ;  Carpenter  v.  Butterfield,  3 
Johns.  Cas.  145 ;  Jeff.  Co.  Bank  v. 
Chapman,  19  Johns.  322  ;  Braithwaite  v. 
Coleman,  4  Nev.  &  Man.  654;  Stew- 
art V.  U.  S.  Ins.  Co.  9  Watts,  126  ; 
Morrison  v.  Moreland,  15  S.  &  R. 
61  ;  Huling  v.  Hugg,  1  W.  &  S.  418; 
Edwards  v.  Temple,  2  Harring.  322 ; 
Carprew  v.  Canavan,  4  How.  (Miss.^ 
370.  And  if  the  defiendant  claims  to 
set  off  the  plaintiff's  note,  which  has 
been  indorsed  to  him,  he  must  show 
•that  it  came  to  him  before  the  plain- 
tiff's suit  was  commenced.  Jeff.  Co. 
Bank  v.  Chapman,  19  Johns.  322  ;  Kel- 
ly V.  Garrett.  1  Gilm.  649.  Money  paid 
by  the  defendant  as  surety  for  the  plain- 
tiff after  action  brought,  but  on  an  obli- 
gation entered  into  before,  cannot  be 
set  off.     Cox  V.  Cooper,  3  Ala.  256. 

(h)  Lechmerc  v.  Hawkins,  2  Esp.  626  ; 
McGillivray,  v.  Simson,  2  C  &  P.  320, 
9  D.  &  R.  35 ;  Loudon  i'.  Tiffany,  5 
Watts  &  S.  367  ;  Baker  v.  Brown,  10 
Missouri,  396. 

(?)  Browne  v.  Robinson, 2  Caincs's  Cas. 
in  Error,  341  ;  Gordon  v.  Church,  2 
Caincs,  299  ;  Fish  v.  Kempton,  7  C. 
B.  687;  Jarvis  v.  Chappie,  2  Chitty, 
387. 


CH.  III.] 


DEFENCES. 


249 


own,  with  a  right  to  do  so,  and  the  buyer  does  not  know  that 
they  are  not  his  own.  (j)  But  he  cannot  set  off  a  debt  due 
to  him  from  the  principal,  if  the  factor  has  a  lien  on  the  goods, 
even  if  the  principal  be  mentioned  at  the  sale,  (k)  And,  if 
before  they  are  delivered,  or  any  payment  made,  the  buyer 
is  notified  that  they  belong  to  a  third  person,  he  cannot  set- 
off against  an  action  by  that  person,  a  debt  due  to  him  from 
the  factor.  (/)  A  broker,  being  one  to  whom  goods  are  not 
intrusted,  and  who  usually  and  properly  sells  in  the  name  of 
his  principal,  and  who  is  understood  to  be  only  an  agent, 
whether  he  sells  in  his  own  name  or  not,  he  stands  only  on 
the  footing  of  an  agent,  (m)  And  if  an  action  be  brought 
by  an  agent  in  his  own  name  for  a  debt  due  to  his  principal, 
the  defendant  may  set  off  a  debt  due  from  such  principal,  (w) 


ij)  Carr  v.  Hinchliff,  4  B.  &  C 
547;  Stracey  r.  Deey,  7  T.  R.  361, 
note;  Purchell  v.  Salter,  1  Q.  B.  197. 
And  see  George  v.  Clagett,  7  T.  R. 
359  ;  Rabone  v.  Williams,  7  T.  R.  360, 
note  ;  Pigeon  v.  Osborn,  12  Ad.  & 
El.  715  ;  Parker  v.  Donaldson,  2  Watts 
&  S.  9;  Gardner  v.  Allen,  6  Ala.  187  ; 
Sims  V.  Bond,  5  B.  &  Ad.  389  :  AVaring 
V.  Favenck,  1  Canipb.  85  ;  Westwood 
V.  Bell,  Holt's  N.  P.  R.  124. 

(k)  Hudson  v.  Granger,  5  B.  &  Aid. 
27 ;  Drinkwater  v.  Goodwin,  Cowp. 
251.  But  if  the  factor  has  parted  with 
the  goods  and  lost  his  lien,  the  purchaser 
may  set  off  his  debt  against  the  princi- 
pal. Coppin  I'.  Craig,  7  Taunt.  243  ; 
Coppin  ?'.  Walker,  id.  236. 

(/)  1  Har.  &  Edw.  N.  P.  356 ;  Bar- 
bour on  Set-off,  136  ;  Rabone  v.  Wil- 
liams, 7  T.  R.  360,  n. 

(m)  Wilson  v.  Codman,  3  Cranch, 
193 ;  Atkinson  ?;.  Teasdalc,  1  Bay, 
299  ;  Godfrey  v.  Forrest,  Id.  300. 

(?j)  Royce  v.  Barnes,  11  Met.  276. 
This  doctrine,  however,  is  repudiated 
by  the  late  English  case  of  Isberg  v. 
Bowden,  22  Eng.  Law  &  Eq.  551. 
That  was  an  action  for  freight  due  un- 
der a  charter-party.  Plea,  that  the 
plaintiff  entered  into  the  charter-party 
as  master  of  the  ship,  and  for,  and  on  be- 
half of,  and  as  agent  for  M.,  the  owner ; 
that  the  plaintiff  never  had  any  benefi- 
cial interest  in  the  charter,  or  any  lien 
on  the  freight,  and  that  he  brought  the 
action  solely  as  agent  and  trustee  for 
M.,  and   that  M.  was  indebted  to  the 


defendant  in  a  certain  amount,  which 
the  defendant  offered  to  set  off.  Held, 
on  demurrer,  that  the  statute  of  set-ofF 
did  not  apply.  Martin',  B.,  in  deliver- 
ing the  judgment  of  the  court,  said, — 
"  It  was  contended,  on  behalf  of  the 
plaintiff  in  support  of  the  demurrer, 
that  the  plea  was  bad  at  common  law, 
and  could  only  be  supported  by  virtue 
of  the  statute  of  set-off,  and  that  inas- 
much as  the  plaintiff  in  the  action  was 
not  the  debtor  to  the  defendant,  the  case 
was  not  within  the  statute.  It  was  ad- 
mitted, on  the  other  hand,  that  the  plea 
was  bad  at  common  law,  but  contended 
that  the  statute  had  received  a  construc- 
tion in  several  cases  which  were  cited, 
and  to  which  we  shall  presently  refer, 
and  that  upon  such  construction  the 
plea  could  be  maintained.  The  statute 
enacts,  '  that  where  there  are  mutual 
debts  between  the  plaintiff  and  the  de- 
fendant, one  debt  may  be  set  against  the 
other.'  This  is  the  whole  enactment 
as  applicable  to  the  present  case,  and 
upon  its  true  construction  the  question 
depends.  If  the  words  of  the  statute 
had  been  that  where  there  were  '  mutual 
debts  the  one  might  be  set  against  the 
other,'  the  argument  for  the  defendant 
would  have  had  more  weight ;  but  these 
are  not  the  only  words,  for  the  debts 
are  to  be  mutual  debts  between  the 
plaintiff  and  the  defendant,  and  there  is 
no  debt  here  due  from  the  plaintiff  at 
all ;  and  except  the  words  '  between 
the  plaintiff  and  the  defendant '  can  be 
excluded,  the  plea  cannot  be  maintained. 


250 


THE   LAW   OF   CONTRACTS. 


[part  II. 


In  general,  if  an  agent  be  permitted  by  his  principal  to  act 
as  if  he  were  the  principal  and  not  an  agent,  one  dealing 
with  him,  and  supposing  him  to  be  a  principal,  acquires  the 
same  rights,  and  among  these  the  right  of  set-off,  which  he 
would  have  if  the  agent  were  a  principal ;  nor  can  he  be  sub- 
sequently deprived  of  these  rights  by  the  coming  in  of  a  third 
party  who  was  a  stranger  to  him  in  the  original  trans- 
action. 


In  support  of  his  view,  the  defendant's 
counsel  cited  the  case  of  Coppin  v. 
Craig,  wliere  a  plea,  in  substance  the 
same  as  the  present,  was  pleaded.  The 
plea  was  not  demurred  to,  and  its  rali- 
dity  or  non-validity  in  point  of  law 
seems  never  to  have  been  considered  at 
all,  and  the  matter  decided  by  the  court 
was  quite  collateral  to  the  present  ques- 
tion ;  so  also  a  case  of  Jarvis  v.  Chap- 
pie, where  a  similar  plea  was  plead- 
ed, was  also  relied  on.  This  was  an 
action  by  an  auctioneer,  for  goods  sold 
and  delivered,  and  the  defendant  plead- 
ed that  the  plaintiff  sold  as  agent  for 
one  Tappinger,  who  was  indebted  to 
the  defendant,  which  debt  was  plead- 
ed as  a  set-off.  The  plaintiff  replied, 
that  the  goods  were  not  the  goods  of 
Tappinger,  and  were  not  sold  by  the 
plaintiff  as  his  agent,  upon  which  is- 
sue was  joined.  The  plaintiff  was  non- 
suited at  the  trial,  and  the  application 
to  the  court  was  to  set  aside  this  non- 
suit. It  is  at  once,  therefore,  obvious  that 
the  present  question  could  not,  by  pos- 
sibility, have  arisen  under  such  circum- 
stances. The  case  of  Carr  v.  Hinchliff, 
and  several  other  cases  decided  on  the 
same  principle,  were  also  cited.  It  is 
quite  true  that  there  are  expressions  in 
the  judgment  of  the  learned  judges  in 
that  case  which  seem  to  support  the 
argument  for  the  defendant;  but  the 
real  ground  upon  which  that  and  the 
other  cases  decided  on  the  same  point 
proceeded  is,  that  where  a  principal 
permits  an  agent  to  sell  as  apparent 
principal,  and  afterwards  intervenes,  the 
buyer  is  entitled  to  be  placed  in  the 
same  situation  at  the  time  of  the  disclo- 
sure of  the  real  principal,  as  if  the  agent 
had  been  the  real  contracting  party,  and 
is  entitled»to  the  same  defence,  whether 
it  be  by  common  law  or  by  statute,  pay- 
ment or  set-off,  as  he  was  entitled  to  at 


that  time  against  the  agent,  the  appa- 
rent principal.  The  cases  of  Carr  v. 
Hinchliff,  George  v.  Clagett,  7  Term 
Rep.  3.59,  and  Rabone  v.  Williams, 
Ibid.  360,  n.,  are  all  explained  on  that 
principle  in  Tucker  i\  Tucker.  By  this 
case  and  that  of  Wake  v.  Tinkler,  and 
Lane  v.  Chandler,  referred  to  in  7  East, 
153,  the  cases  of  Bottomley  v.  Brooke, 
and  Rudge  v.  Birch,  must  be  consider- 
ed as  entirely  overruled,  and  the  case 
of  Tucker  v.  Tucker  goes  far  to  show 
that  the  statute  of  set-off  is  confined 
to  the  legal  debts  between  the  parties, 
the  sole  object  of  the  statute  being  to 
prevent  cross  actions  between  the  same 
parties.  The  case  of  Stackwood  v. 
Dunn  was  cited  on  behalf  of  the  de- 
fendant. It  is  enough  to  say  that  this 
case  goes  much  beyond  that.  In  that 
ca.se  it  seems  to  have  been  ruled  that 
the  demurrer  having  confessed  the  truth 
of  the  pleas,  the  set-off  was  to  be  allow- 
ed between  the  parties.  The  cases  cited 
in  Story  on  Agency,  p.  361,  sect.  409, 
as  the  authority  for  what  is  there  said, 
are  those  already  adverted  to  from  7 
Taunton,  237  and  243,  and  shown  not  to 
support  the  general  proposition.  In  this 
case  the  plaintiff  was  the  party  whom 
the  defendant  agreed  to  pay,  and  wc 
think  that,  looking  at  the  plain  words 
of  the  statute,  we  best  give  effect  to  the 
true  rule  now  adopted  by  all  the  courts 
at  AVestminster  for  its  construction,  by 
holding,  that  inasmuch  as  the  debts  are 
not  mutual  delits  between  the  plaintiff 
and  the  defendant,  the  one  cannot  he 
set  off  against  the  other.  This  is  act- 
ing upon  the  rule  as  to  giving  effect  to 
all  the  words  of  the  statute  :  a  rule  uni- 
versally applicable  to  all  writings,  and 
which  we  thinkought  not  to  be  departed 
from,  except  upon  very  clear  and  strong 
grounds,  which  do  not,  in  our  opinion, 
exist  in  this  case." 


CH.  III.]  DEFENCES.  251 

"When  an  action  is  brought  by  or  against  a  trustee,  in  that 
capacity,  money  due  to  or  from  the  cestui  qui  trust,  may  be 
set  off;  for  it  will  be  considered  that  the  party  in  interest, 
and  not  merely  the  party  of  record,  is  the  one  by  whom  or 
against  whom  the  set-off  should  be  made,  (o) 

Set-off,  it  has  been  said,  is  in  the  nature  of  a  cross 
action,  which  may  be  for  a  larger  amount  than  was  due  on 
the  original  action.  If,  therefore,  the  defendant  files  and  sus- 
tains his  set-off,  and  the  result  is  not  only  that  he  owes  the 
plaintiff  nothing,  but  that  the  plaintiff  owes  him  a  balance 
when  the  mutual  and  opposing  claims  are  adjusted,  the 
defendant  may  have  judgment  and  execution  against  the 
plaintiff",  in  that  action,  for  the  balance  or  surplus  due  to 
him.  (p) 

Of  the  notice  of  set-off,  which  must  depend  much  on  the 
several  statutes  and  the  rules  of  court,  it  is  only  necessary  to 
say,  that  it  must  be  very  precise  and  certain.  For  set-off  is 
in  efi'ect,  as  has  been  often  said,  in  the  nature  of  a  cross 
action,  of  which  the  notice  is  the  declaration,  and  it  should 


(o)  Campbell  V.Hamilton, 4  Wash.  C.  trix  of  C,  upon  that  bond.    Held,  that 

C.  R.  93  ;  Sheldon  v.  Kendall,  7  Cush.  in  this  action  the  claim  of  E.  upon  S.'s 

217.     See  Barrett  v.  Barrett,  8   Pick,  bond  could  not  be  set  off.     See  Isberg  u. 

342.     But  see  Wheeler  v.  Raymond,  5  Bowden,  ante,  and  the  remarks  of  3Iar- 

Cow.  231,  9  Cowcu,  295  ;  Beale  v.  Coon,  tin,  B.     In  Hurlbert  v.  Pacific  Ins.  Co. 

2    Watts,    183  ;    Porter    v.    Morris,    2  2  Sumner,  472,  where  the  subject  was 

Harring.  509  ;  President,  &c.  v.  Ogle,  fully  discussed,  it  was  decided  tliat  where 

Wright,  281 ;  Tucker  v.  Tucker,  4  B.  an  insurance  was  effected  by  an  agent, 

&  Ad.  745.     In   this   case   S.   gave  a  for  the  benefit  of  whom  it  concerned, 

bond,  conditioned  for  the  payment  of  and  the  agent  brought  an   action  in  his 

money.     The  obligee  made  C.  his  exe-  own  name,  the  Insurance  Co.  could  not 

cutrix  and  residuary  legatee,  and  died,  set  off  a  debt  due  them  from  the  agent 

C.  proved  the  will,  assented  to  the  be-  in  his  own  right.     Williams  v.   Ocean 

quest,   and  died,  not   having  fully  ad-  Ins.  Co.  2  Met.  303,  is  to  the  same  eft'ect. 

ministered,  leaving  E.  executrix  of  tlie  (/')  In  England  this  cannot  be  done, 

executrix  C,  in  trust  for  her  (E.'s)  own  but  the  defendant  must  bring  his  action 

benefit.    A  sum  due  on  the  bond  in  the  for  the  surplus.    Ilennell  v.  Fairlarab, 

first   testator's   time   remained  unpaid.  3  Esp.  104.     But  in  America,   such  a 

C.,  during  her  lifetime,  in  consideration  course  is  common.     Good  v.  Good,  9 

of  a  marriage  about  to  take  place  be-  Watts,  567;    Cowsar  r.  Wade,  2  Brev. 

tween  her   and  the  father  of  S.,  gave  291.     And  the  plaintiff  cannot  file  any 

a  bond  to  a  trustee,  conditioned  for  a  counter  set-off,   Hall  v.  Cook,    1   Ala. 

payment  of  a  sum  of  money  to  the  use  629;  nor  discontinue  liis  action,  Riley 

of  S.,  if  C.  should  marry  and  survive  v.  Carter,  3  Humph.  230.    A  defendant 

her  intended  husband.     She  did  marry  cannot  file  the  same  account  in  set-off 

and  survive  him,  and  the  money  not  to   two   separate   actions  by  tlic  same 

having  been  paid   in  her  lifetime,  the  plaintiff.     Chase  v.  Strain,  15  N.  H.  R. 

trustee's  executor  sued  E.,  the  execu-  535. 


252  THE  LAW  OF  CONTRACTS.  [PART  II. 

be  ill  fact  and  substance,  if  not  in  form,  as  full-  and  as  clear 
and  definite  as  a  declaration,  in  order  that  the  plaintiff  may 
have  the  same  opportunity  of  knowing  precisely  what  claim 
is  made  against  him,  that  he  would  have  if  it  were  made  by 
an  original  action,  (q) 

A  defendant  has  a  right  to  withdraw  his  account  in  set- 
off, although  this  may  expose  the  plaintiff's  claim  to  the 
statute  of  limitations,  by  the  absence  of  all  other  evidence, 
of  any  mutual  and  open  accounts,  (r) 


SECTION  XII. 

OP   ILLEGAL   CONTRACTS. 

We  have  already  spoken  of  illegal  contracts  in  connection 
with  other  subjects,  and  especially  of  an  illegal  consideration, 
in  our  first  volume.  We  would  add  here,  that  as  all  contracts 
which  provide  that  any  thing  shall  be  done  which  is  distinctly 
prohibited  by  law,  or  morality,  or  public  policy,  are  void,  (s) 
so  he  who  advances  money  in  consideration  of  a  promise  or 
undertaking  to  do  such  a  thing,  may,  at  any  time  before  it  is 
done,  rescind  the  contract,  and  prevent  the  thing  from  being 
done,  and  recover  back  his  money.  (^)     But  it  would  seem 

(7)  See  Barbour  on  Set-off.    Babbing-  (^  Thus,  in  White  t;.  The  Franklin 

ton  on  Sot-off.  Bank,  22  Pick.   181,  where,  upon  the 

(r)  Theobald   v.    Colby,   35    Maine,  deposit  of  money  in  a  bank,  the  depo- 

179  ;  Muirliead  v.  Kirkpatrick,  5  W.  &  sitor  received   a  book  containing    the 

S.  506;  Gary  v.  Bancroft,  14  Pick.  .318.  cashier's  certificate  thereof,  in  which  it 

(s)  This  principle  is  embodied  in  the  was  stated  that  the  money  was  to  re- 
maxim,  ex  turpi  causa,  non  oritur  actio,  main  in  deposit  for  a  certain  time,  it 
No  principle  is  better  settled  in  the  law,  was  hekl,  that  such  agreement  was  illc- 
as  the  following  among  many  other  au-  gal  and  void,  under  the  lieviscd  Statutes, 
thorities  show.  Shifiner  w.  Gordon,  12  c.^G,^  bl,  as  being  a  contract  hi/ the  bank 
East,  .304  ;  Belding  v.  Pitkin,  2  Caincs,  /ort/iepai/mentoftnonej/atafutnre  day  cer- 
149;  Springfield  Bank  v.  Merrick,  14  'tain;  and  that  no  action  could  1)C  main- 
Mass.  322;  Russell  v.  De  Grand,  15  tained  by  the  depositor  against  the  bank 
Mass.  39  ;  Wheeler  r.  Russell,  17  Mass.  upon  such  express  contract;  but  that 
281  ;  Allen  r.  Rescous,  2  Lev.  174;  he  might  recover  back  the  money  in  an 
Eletcher  v.  llarcot,  Ilutton,  56  ;  IIol-  action  commenced  before  the  expiration 
man  v.  Johnson,  Cowp.  343  ;  Gaslight  of  the  time  for  which  it  was  to  remain 
Co.  V.  Turner,  7  Scott,  779  ;  Wetherell  in  deposit,  the  parties  not  being  in  pari 
V.  Jones,  3  B.  &  Ad.  221  ;  Eivaz  v.  Ni-  chlictu,  and  the  action  being  in  disaffirm- 
chols,  2  C.  B.  501  ;  Simpson  v.  Bloss,  ance  of  the  illegal  contract ;  and  that 
7  Taunt.  246.  such  action  might  be  maintained  with- 


CH.  III.]  DEFENCES.  253 

obvious  that  if  he  delays  rescinding  until  his  rescision  is  in- 
operative, and  the  thing  will  still  be  done,  although  the  con- 
tract, at  the  time  of  the  rescision,  was  in  form  executory,  it 
should  come  under  the  same  rule  as  an  executed  contract  for 
unlawful  purposes;  and  here  the  law,  in  general,  refuses  to 
interfere,  but  leaves  both  parties  as  they  were  ;  (u)  unless  the 
case  shows  that  there  is  a  substantial  difference  between 
them ;  the  one  doing  and  the  other  suffering  the  wrong. 
And  in  this  case  the  sufferer  may  have  a  remedy,  but  not  the 
wrongdoer,  (v) 

The  more  important  classes  of  contracts  in  which  the 
question  of  illegality  has  arisen,  are  contracts  in  restraint  of 
marriage,  contracts  in  restraint  of  trade,  contracts  which  vio- 
late the  revenue  laws  of  foreign  countries,  contracts  which 
tend  to  corrupt  legislation,  wagering  contracts,  and  champerty 
atid  maintenance.  Contracts  in  restraint  of  marriage  we 
have  already  noticed  in  our  first  volume,  (lu)  The  others 
we  shall  consider  briefly  in  this  place. 


1.  Of  contracts  in  restraint  of  trade. 

It  is  not  only  a  defence  to  a  contract  that  it  requires  of  the 
defendant,  or  that  the  defendant  by  it  promised  to  do  an  act 
which  the  law  forbade  his  doing,  but  it  may  also  be  a  de- 
fence, that  by  the  contract  the  defendant  undertook  to  do 
what  the  plaintiff  was  forbidden  by  law  to  ask  of  him. 
Generally  these  two  cases  would  be  the  same  ;  for  it  is  not 
often  that  it  is  unlawful  to  ask  what  it  would  be  lawful  to 

out  a  previous  demand.     And  the  fol-  290;  Fitzroy  u.   Gwillim,  I  T.  R.  153; 

lowing  cases  were  relied  upon  as  show-  Robinson  v.  Bland,  2  Burr.  1077  ;  Te- 

ing  that  money  advanced  upon  an  ille-  nant  v.  Elliott,  1  B.  &  P.  3  ;  Utica  Ins. 

gal  contract   may   be   recovered    back.  Co.  v.   Scott,  19  Johns.  1  ;  Utica  Ins. 

Bartlett  v.  Vinor,  Carth.  252;  De  Beg-  Co.  v.  Bloodgood,  4  Wend.  652;  Utica 

nis  V.  Armistead,  10  Bing.  110 ;  Lang-  Ins.  Co.  v.  Kip,  8  Cow.  20  ;  Utica  Ins. 

ton  V.  Hughes,  1    M.  &  S.  596  ;  Gallini  Co.  v.  Cadwell,  3  Wend.  296. 

V.   Laborio,    5  T.    R.  242;  Springfield  00  Footc  t-.  Emerson,  10  Verm.  338; 

Bank  v.  Merrick,  14  Mass.  322  ;  Wliculer  Dixon  v.  Olmstead,  9  Verm.  310  ;  Lub- 

V.  Russell,   17   Mass.  258;  Lacaussade  bock  r.  Potts,  7  East,  449;  Howson  v. 

V.  White,  7  T.  R.  535 ;  Cotton  v.  Thur-  Hancock,  8  T.  R.  577. 

land,  5  T.  R.  405  ;  Smith  v.  Bickmore,  (r)  See  White  v.  The  Eranklin  Bank, 

4  Taunt.  474  ;  Scott  v.  Nesbitt,  2  Cox,  22  Pick.  181. 

183  ;  Parker  v.  Rochester,  4  Johns.  Ch.  (w)  See  vol.  1,  pp.  555,  556. 
330 ;  Wheaton  v.  Hibbard,  20   Johns. 
VOL.  II.                                 22 


254 


THE   LAW   OF   CONTRACTS. 


[part  II. 


do.  But  the  distinction  exists,  and  may  be  well  illustrated 
by  certain  contracts  which  are  called  "contracts  in  restraint 
of  trade,"  and  which  the  j5olicy  of  the  law  is  said  to  make 
illegal  and  void.  If  therefore  an  action  be  brought  on  such 
a  contract  to  recover  damages  for  carrying  on  the  trade 
which  it  is  agreed  shall  be  abandoned,  the  defence  of  illegal- 
ity may  be  made.  And  yet  it  is  certain  that  every  one  is  at 
full  liberty  to  abandon  or  to  vary  his  trade  or  occupation  at 
his  own  pleasure.  By  these  contracts,  which  the  law  makes 
void,  such  a  promise  is  made  ;  that  is,  one  who  exercises  any 
trade,  business,  or  occupation,  promises  to  abandon  the  same, 
and  thereafter  exercise  it  no  more. 

The  history  of  the  law  upon  this  subject  is  somewhat  pecu- 
liar. So  long  ago  as  in  the  times  of  the  Year  Books  the 
courts  frowned  with  great  severity  upon  every  contract  of 
this  kind.  But  after  a  while  this  excessive  aversion  became 
much  mitigated.  Many  exceptions  and  qualifications  were 
allowed.  These  were  gradually  enlarged,  until  it  became 
the  settled  rule  that  while  a  contract  not  to  carry  on  one's 
trade  anywhere  was  null  and  void,  a  contract  not  to  carry  it 
on  in  a  particular  place,  or  within  certain  limits,  was  good 
and  enforceable  at  law. 

If  the  series  of  cases  in  relation  to  this  subject  are  criti- 
cally examined,  {x)  and  considered  in  connection  with  the 


[x)  The  principal  cases  on  this  sub- 
ject are  here  stated  in  chronological 
order.  Tlie  first  reported  case  to  be 
found  i?  in  the  Year  Boole,  2  Hen.  b, 
fol.  5,  pi.  2G,  (1415).  There  a  writ  of 
debt  was  brought  on  an  obligation  by 
one  John  Dyer,  in  wliich  tiie  defendant 
alleged  the  obligation  in  a  certain  in- 
denture which  he  put  fortii,  and  on  con- 
dition tliat  if  the  defendant  did  not  use 
his  art  of  a  dyer's  craft,  witliin  tlie  city 
where  tlie  plaintiff,  &c.,  for  a  certain 
time,  to  wit,  for  half  a  year,  the  obligation 
to  lose  its  force;  and  said  that  he  did 
not  use  bis  art  of  dyer's  craft  within 
the  limited  time,  whicli  he  averred,  and 
prayed  judgment,  &c.  lluU.  In  my 
opinion  you  might  have  demurred  upon 
him,  that  the  obligation  is  void,  inas- 
much as  the  coniiition  is  against  the 
common  law  ;  and  by  G — ,  if  the  plain- 
tiff were  here,  he  should  go  to  prison 


till  lie  paid  a  fine  to  the  king.  In  Col- 
gate V.  Bacheler,  Cro.  Eliz.  872,  it 
was  held  that  a  bond  conditioned  to 
pay  .£20  if  A.  shall  use  the  trade  of  a 
haberdasher  within  a  certain  time  and 
place,  is  void.  But  in  Kogers  v.  V&y- 
rcy,  2  Bulstr.  136,  the  court  declared 
that  a  man  may  be  well  bound  and  re- 
strained from  using  his  trade  for  a  time 
certain  and  in  a  place  certain.  Sec  also 
Jelliet  V.  Broade,  Noy,  98,  where  the 
court  declared  substantially  tlic  same 
doctrine-  See  also  Prugnell  v.  Gosse, 
Aleyn,  07;  Clerk  v.  Tailors  of  Exe- 
ter, "s  Lev.  231.  In  Broad  v.  Jollyfe, 
Cro.  Jac.  596,  (1621)  the  ]>rincip!e  was 
expressed  thus:  —  "  Ujion  u  valuable 
consideration  one  may  restrain  himself 
that  be  shall  not  use  his  trade  in  such  a 
])arlicular  place  ;  for  he  who  gives  that 
consideration  expects  the  benelit  of  his 
customers  ;  and  it  is  usual  here  in  Lon- 


CH. 


III.] 


DEFENCES. 


255 


cotemporary  alterations  in  the  law  or  usage  in  other  respects, 
we  cannot  but  think  that  much   reason  will  be  found  for 


(Ion  for  one  to  let  liis  shop  and  wares  to 
his  servant  when  he  is  out  of  his  appren- 
ticeship ;  as  also  to  covenant  that  he 
shall  not  use  that  trade  in  such  a  shop 
or  in  such  a  street ;  so  for  a  valuable  con- 
sideration, and  voluntarily,  one  may 
agree  that  he  will  not  use  his  trade ;  for 
volenti  non  fit  injuria."  But  the  leading 
case  on  this  subject  is  Mitchell  v.  Rey- 
nolds, Fort.  296,  1  F.  Wnis.  181.  There 
the  condition  of  a  bond  was  that  neither 
the  defendant  nor  his  assigns  should 
keep  a  victualling  house,  or  vend  liquor 
therein,  or  in  any  other  place  within 
a  mile  of  Rosemary-lane,  during  twen- 
ty-one years ;  the  consideration  was, 
that  the  defendant  had  assigned  his  in- 
terest in  this  house  to  the  plaintiff.  It 
was  held  tiiat  this  bond  was  valid,  be- 
cause grounded  on  a  special  considera- 
tion, set  down  in  the  bond,  which  made 
it  a  reasonable  contract ;  but  otherwise, 
if  there  had  been  no  particular  consider- 
ation to  balance  the  restraint  of  trade. 
So  a  bond  conditioned  not  to  set  up 
trade  in  any  part  of  England  is  void, 
because  this  cannot  be  any  advantage  to 
the  obligee,  and  serves  only  the  pur- 
pose of  oppression.  This  was  followed 
by  Cheesman  v.  Ramby,  Fort.  297,  2 
Strange,  739,  where  the  condition  of 
a  bond  was  that  the  defendant  should 
not  set  u\)  trade  within  half  a  mile 
of  tlie  plaintiff's  then  dwelling-house, 
or  any  other  house  that  she,  her  ex- 
ecutors or  administrators,  should  think 
fit  to  remove  to,  to  carry  on  the  trade 
of  a  linen  draper.  The  consideration 
was,  that  the  plaintiff  was  to  take  the 
defendant's  wife  as  a  hired  servant  to 
her,  to  assist  her  in  the  trade  of  linen 
draper  for  three  years,  without  any  mo- 
ney, whereas  she  did  reasonably  deserve 
£100  with  such  servant  It  was  held 
that  the  bond  was  valid  ;  because  it  was 
grounded  on  a  good  consideration,  and 
did  not  amount  to  a  general  restraint. 
In  Davis  v.  Mason,  5  T.  R.  118,  (1793) 
the  same  question  was  before  tlie  court. 
There,  in  consideration  that  A.  would 
take  B.  as  an  assistant  in  his  business 
as  a  surgeon,  for  so  long  a  time  as  it 
should  please  A.,  B.  agreed  not  to  prac- 
tice on  bis  own  account  for  fourteen 
years  within  ten  miles  of  the  place 
where  A.  lived,  and  gave  a  bond  for 
this  purpose :  this  bond  was  held  good 


in  law.  Still  again  in  Bunn  v.  Guy,  4 
East,  190,  (1803)  a  contract  entered 
into  by  a  practising  attorney  to  relin- 
quish his  business  and  recommend  his 
clients  to  two  other  attorneys  for  a  valu- 
able consideration,  and  not  to  practise 
himself  in  such  business  within  certain 
limits,  and  to  permit  them  to  make  use 
of  his  name  in  their  firm  for  a  certain 
time,  but  without  his  interference,  &c., 
was  holden  to  be  valid  in  law.  Three 
years  afterwards,  in  the  same  court,  in 
Gale  ?'.  Reed,  8  East,  80,  (1806)  the 
question  was  presented  in  a  somewhat 
different  form.  By  indenture  between 
A.  and  B.  and  C.  dissolving  their  part- 
nership as  rope-makers,  A.  and  B.  cove- 
nanted to  allow  C.,  during  his  life,  2s. 
on  every  cwt.  of  cordage  which  they 
should  make  on  the  recommendation  of 
C.  for  any  of  his  friends  and  connec- 
tions, and  whose  debts  should  turn  out 
to  be  good  ;  and  that  A.  and  B.  should 
stand  the  risk  of  such  debts  incurred, 
but  should  not  be  compelled  to  furnish 
goods  to  any  of  C.'s  connections  whom 
they  should  be  disinclined  to  trust.  And 
C.  covenanted  not  to  carry  on  the  busi- 
ness of  a  rope-maker  during  his  life 
(except  on  government  contracts)  ;  and 
that  all  debts  contracted,  or  to  be  con- 
tracted, in  his  or  their  names,  pursuant 
to  the  indenture,  should  be  the  exclu- 
sive property  of  A.  and  B.,  and  tliat  C. 
should,  (luring  his  life,  exclusively  em- 
ploy A.  and  B.,  and  no  other  person,  to 
make  all  the  cordage  ordered  of  him.  by 
or  for  his  friends  and  connections,  on 
the  terms  aforesaid,  and  should  not 
employ  any  other  person  to  make  cord- 
age on  any  pretence  whatsoever.  Held, 
that  the  covenant  by  C.  to  employ  A. 
and  B.  exclusively  to  make  cordage  for 
his  friends,  and  not  to  employ  any 
other,  &c.,  A.  and  B.  not  being  obliged 
to  work  for  any  other  than  such  as  they 
chose  to  trust,  was  not  illegal  and  void 
as  being  in  restraint  of  trade  without 
adequate  consideration,  for  the  whole 
indenture  must  be  construed  together, 
according  to  the  apparent  reasonable 
intent  of  the  parties  ;  and  the  general 
object  being  only  to  appropriate  to  A. 
and  B.  so  much  of  C.'s  private  trade  as 
they  chose  to  give  his  friends  credit  for, 
so  much  only  was  covenanted  to  be 
transferred,  and  C.  was  still  at  liberty  to 


256 


THE   LAW    OF   CONTRACTS. 


[part  II. 


believing  that  the  law  in  relation  to  these  contracts  grew  out 
of  the    English   law   of  apprenticeship,  to  which   we  have 


work  for  any  of  his  friends  wlio  were 
refused  to  he  trusted  by  A.  and  13.,  by 
whicli  construetion  the  restraint  on  C. 
was  only  co-cxtensive,  as  in  reason  it 
could  only  be  intended  to  be,  witli  the 
benefit  to  A.  and  B. ;  and  therefore  the 
restraint  on  C.  could  be  no  prejudice  to 
public  trade.  And  in  Ilayward  v. 
Youn},',  2  Chitty,  407,  (1818)  it  was 
held  that  a  bond  by  an  apothecary  not 
to  set  up  business  within  twenty  miles 
is  not  illegal  as  in  restraint  of  trade. 
In  Bryson  v.  Whitehead,  1  Sim.  &  Stu- 
art, 74,  (1S22)  the  Vice-ChanccUor  of 
England,  Sir  John  Leach,  said: — "Al- 
though the  policy  of  the  law  will  not 
permit  a  general  restraint  of  trade,  yet 
a  trader  may  sell  a  secret  of  business, 
and  restrain  himself  generally  from 
using  that  secret.  Let  the  Master,  in 
settling  the  deed  which  is  to  give  effect 
to  this  agreement,  introduce  a  general 
covenant  to  restrain  the  use  of  the  se- 
cret for  twenty  years,  and  a  limited 
covenant,  in  point  of  locality,  as  to  car- 
rying on  the  ordinary  business  of  a 
dyer,  both  parties  being  willing  that  the 
agreement  should  be  so  modified." 
Three  years  afterwards,  in  Homer  v. 
Ashford,  3  Bing.  322,  the  same  general 
principle  and  limitations  were  recog- 
nized. Wickens  v.  Evans,  3  You.  & 
Jer.  318,  (1829)  recognizes  the  same 
general  principles.  And  this  was  fol- 
lowed by  the  same  court  in  Young  v. 
Timmin.s,  1  Cr.  &  Jer.  331,  (1831) 
where  an  agreement  in  jxirliul  restraint 
of  trade  was  declared  void  for  want  of 
consideration.  And  in  the  same  year 
was  decided  in  the  Common  Pleas  the 
important  case  of  Horner  v.  Graves,  7 
Bing.  735,  (1831).  It  was  there  held, 
after  mature  deliberation,  that  an  agree- 
ment that  defendant,  a  moderately  skil- 
ful dentist,  would  abstain  from  jtractis- 
ing  over  a  district  200  miles  in  diame- 
ter, in  consideration  of  receiving  instruc- 
tions and  a  salary  from  the  plaintift', 
determinable  at  three  months  notice, 
was  unreasonaljle  and  void.  See  fur- 
ther, Hitchcock  V.  Coker,  1  Nev.  &  I'er. 
79G.  (183G)  ;  Archer  v.  Marsh,  C  Ad.  & 
Kl.  959,  (1837)  ;  AVallis  v.  Dav,  2  M.  & 
"W.  273,  (1837);  Leighton  i-.'VVales,  3 
M.  &.  W.  545 ;  Ward  v.  Byrne,  5  M.  & 
W.  548,  (1839);  Ilindc  v.  Gray,  1 
Mann.  &  Grang.  195;  rroctor  v.  Sar- 


gent, 2  Man.  &  Gr.  20,  (1840)  ;  Mallan 
V.  May,  11  M.  &  W.  653,  (1843) ;  Ran- 
nie  u." Irvine,  7  Man.  &  Gr.  9G9,  (1844); 
Green  v.  Price,  13  M.  &  W.  695,  (1845), 
16  M.  &  W.  346:  Pilkington  v.  Scott, 
15  M.  &  VV.  657,  (1846);  Nicholls  v. 
Stretton,  10  Q.  B,  346,  (1847);  Pcm- 
berton  v.  Vaughan,  11  Jur.  411;  Hart- 
ley V.  Cummings,  5  C.  B.  247,  (1847); 
Sainter  v.  Ferguson,  7  C.  B.  716, 
(1849)  ;  Hastings  v.  Whitley,  2  Exch. 
611,  (1848).  Where  the  agreement  is 
not  to  keep  a  shop  or  practise  a  trade 
within  a  certain  number  of  miles  of  a 
certain  place,  the  shortest  and  nearest 
mode  of  access  is  to  be  the  standard  of 
estimate.  Leigh  v.  Hind,  9  B.  &  C 
774  ;  Woods  v.  Dennett,  2  Stark.  89. 
Tlie  principal  American  cases  on  this 
subject  seem  to  be  the  following;  — 
Pierce  v.  Fuller,  8  Mass.  223,  (1811) 
where  an  obligation  not  to  run  a  stage 
between  Boston  and  Providence,  a  dis- 
tance of  about  forty  miles,  in  opposition 
to  the  plaintiff's  stage,  was  held  to  be 
valid,  having  been  made  for  a  reason- 
able and  good  consideration.  This  was 
followed  by  Perkins  v.  Lymati,  9  Mass. 
522,  (1813).  Four  years  after,  the  ge- 
neral ])riiunple  as  stated  in  the  text  was 
recognized  and  adopted  in  Pyke  v.  Tho- 
mas, 4  Bibb,  486.  In  1823,  the  ques- 
tion came  again  before  the  Supreme 
Court  of  Massachusetts  in  Stearns  v. 
Barrett,  1  Pick.  443,  and  tiie  cases  in 
the  8th  and  9th  Mass.  above  cited,  were 
confirmed.  The  same  court  held  in 
1825,  (Palmer  v.  Stebbins,  3  Pick.  188,) 
that  a  bond  conditioned  that  the  oliligor 
shall  give  the  obligee  all  the  freighting 
of  the  obligor's  goods  up  and  down  the 
Connecticut,  at  the  customary  price,  to 
be  paid  in  goods  at  the  usual  price,  and 
that  he  shall  not  encourage  any  other 
boatman  to  com])ete  with  the  obligee  in 
the  liusincss  of  boating,  is  not  void,  as 
being  in  restraint  of  trade,  and  is  found- 
ed on  a  sufficient  consideration.  Tlie 
case  of  Nobles  v.  Bates,  7  Cowen,  307, 
(1827)  seems  to  have  been  the  next 
touching  tliis  ([uestion.  There  the 
agreement  was  not  to  carry  on  a  cer- 
tain trade  "within  twenty  miles  of  a 
certain  stand."  The  agreement  was 
held  binding,  the  court  observing:  — 
"  A  bond  or  promise  upon  good  consi- 
deration, not  to  exercise  a  trade  for  a 


en.  III.]  DEFENCES.  257 

already  referred.  By  this  law  in  its  original  severity,  no  per- 
son could  exercise  any  regular  trade  or  handicraft  except 
after  a  long  apprenticeship,  and,  generally,  a  formal  admission 
to  the  proper  guild  or  company.  If  he  had  a  trade,  he  must 
continue  in  that  trade,  or  have  none.  To  relinquish  it,  there- 
fore, was  to  throw  himself  out  of  employment;  to  fall  as  a 
burden  upon  the  community ;  to  become  a  pauper.  And 
it  is  not  surprising  that  a  judge  in  the  reign  of  Henry  5th 
should  speak  of  a  promise  to  do  this  in  language  which 
would  now  be,  because  indecorous,  impossible.  But  this 
ancient  severity  of  the  law  of  apprenticeship  abated  ;  and  as 
this  severity  gradually  relaxed,  it  will  be  seen  that  contracts 
"in  restraint  of  trade"  were  treated  with  less  and  less  of 
disfavor,  until  the  present  rule  became  established. 

In  the  application  of  this  rule  we  shall  see  a  gradual  en- 
largement, until,  in  this  country  at  least,  it  seemed  to  be 
little  more  than  nominal.  The  cases  are  quite  numerous, 
but  we  believe  that  the  first  case  in  which  a  contract  was 
sought  to  be  enforced  in  which  the  renunciation  was  abso- 
lute, was  in   Massachusetts,  in  1837  ;  {y)  and  this  is  -also 


limited  time,  at  a  particular  place,  or  21  "VYcnd.  IGG  :  Jarvis  v.  Peck.  1  IIoiT. 
within  a  particular  parisli,  is  good.  Cli.  479,  (1840);  Bowser  v.  Bliss,  7 
But  where  it  is  general  not  to  exercise  a  Blackf.  344,  (1845). 
trade  throw/hout  the  kin<jdom,  it  is  had,  {ij)  Alger  v.  Thacher,  19  Pick.  .51. 
though  founded  on  good  consideration,  This  was  debt  on  a  bond  conditioned 
as  being  a  too  unlimited  restraint  of  that  the  obligor  should  never  carry  on 
trade ;  and  operating  oppressively  upon  or  be  concerned  in  the  business  of 
one  party,  without  being  of  any  benefit  founding  iron.  The  case  was  argued 
to  either"  Again,  in  Pierce  v.  Wood-  at  great  length  before  the  Supreme  .In- 
ward, G  Pick.  206,  (1828)  the  defendant  dicial  Court  of  Massachusetts,  and  all 
sold  the  plaintiff  a  grocery  store,  and  the  cases  from  the  Year  Books  to  that 
verh'illij  agreed  not  to  carry  on  tiie  same  time  were  cited.  And  Morton,  J.,  in 
kind  ofbusiness  within  a  "certain  limited  delivering  the  opinion  of  the  court, 
distance  in  the  city  of  Boston."  It  was  said:  —  "Among  the  most  ancient  rules 
held  that  it  was  a  sufficient  considera-  of  the  common  law,  we  find  it  laid 
tion  for  such  agreement  if  the  plaintiff  down,  that  bonds  in  restraint  of  trade 
was  thereby  induced  to  make  the  pur-  are  void.  As  early  as  the  second  year 
chase,  and  that  this  might  lie  shown  by  of  Henry  V.  (A.  D.  141.'j)  we  find  by 
parol,  although  the  deed  was  silent  the  Year  Books  that  this  was  considered 
about  any  such  consideration.  The  to  be  old  and  settled  law.  Through  a 
next  case  in  point  of  time  was  Alger  v.  succession  of  decisions,  it  has  been 
Thacher,  19  Pick.  51,  (1837)  for  which  handed  down  to  us  unquestioned  till 
see  next  note.  And  sec  Vickcry  v.  the  present  time.  It  is  true,  the  gene- 
Welch,  19  Pick.  523.  The  whole  sub-  ral  rule  has,  from  time  to  time,  been 
jcct  was  examined  at  much  length  by  modified  and  qualified,  but  the  prinei- 
Bronson,  J.,  in  the  subsequent  case  of  jile  has  always  been  regarded  as  itnport- 
Chappcl  V.  Brockway,  21  Wend.  157,  ant  and  salutary.  For  two  hundred 
(1839).  See  further,  Boss  v.  Sadgbecr,  years  tiic  rule  continued  unchanged  and 
22* 


258 


THE   LAW   OF    CONTRACTS. 


[part  ir. 


nearly,  if  not  quite,  the  first  in  which  such  a  promise  was 
declared  to  be  wholly  null,  by  direct  adjudication  ;  the  state- 
ments in  other  cases,  that  a  local  limitation  was  necessary, 
and  would  make  the  promise  enforceable,  being  for  the  most 
part,  if  not  altogether,  obiter.  In  the  previous  cases,  such  a 
promise,  it  is  said,  would  be  avoided  by  the  law ;  but  in 
none  of  them  was  this  done,  as  there  was  always  some  limit- 
atiou.  But  this  was  sometimes  very  wide.  In  one,  for  ex- 
ample, a  promise  not  to  use  certain  machines  in  any  of  the 
United  States  except  two  (Massachusetts  and  Rhode  Island) 


without  exceptions.  Then  an  attempt 
was  made  to  qualify  it,  by  setting  up  a 
distinction  between  sealed  instruments 
and  simple  contracts.  But  this  could 
not  be  sustained  upon  any  sound  prin- 
ciple. A  ditFercnt  distinction  was  then 
started,  between  a  general  and  a  limited 
restraint  of  trade,  which  has  been  ad- 
hered to  down  to  the  present  day.  ,This 
qualification  of  the  general  rule  may  be 
found  as  early  as  the  eighteenth  year  of 
James  I.,  A.  D.  1621,  Broad  v.  Jolyffe, 
Cro.  Jac.  596,  when  it  was  holden,  that 
a  contract  not  to  use  a  certain  trade  in 
a  particular  place  was  an  exception  to 
the  general  rule,  and  not  void.  And  in 
the  great  and  leading  case  on  this  sub- 
ject, Mitchel  V.  Reynolds,  reported  in 
Lucas,  27,  85,  130,  Fortcscue,  296,  and 
1  P.  Wms.  181,  the  distinction  be- 
tween contracts  under  seal  and  not 
under  seal  was  finally  exploded,  and 
the  distinction  between  limited  and 
general  restraints  fully  established. 
Ever  since  that  decision,  contracts  in 
restraint  of  trade  generally  have  been 
held  to  be  void;  while  those  limited  as 
to  time,  or  place,  or  persons,  have  been 
regarded  as  valid,  and  duly  enforced. 
Whether  these  exceptions  to  the  gene- 
ral rule  were  wise,  and  have  really  im- 
proved it,  some  may  doubt;  but  it  has 
been  too  long  settled  to  be  called  in 
question  by  a  lawyer.  Tiiis  doctrine 
extends  to  all  branches  of  trade  and  all 
kinds  of  business.  The  efforts  of  the 
plaintift'"s  counsel  to  limit  -it  to  handi- 
craft trades,  or  to  found  it  on  the  Eng- 
lish system  of  a)iprenticcshi]>,  though 
enriched  by  deep  learning  and  indcfaii- 
gable  research,  have  proved  unavailing. 
In  England  the  law  of  apprenticeship 
and  the  law  against  the  restraint  of 
trade  may  have  a  connection.     But  wc 


think  it  very  clear  that  they  do  not,  in 
any  measure,  depend  upon  each  other. 
That  the  law  under  consideration  has 
been  adopted  and  practised  upon  in  this 
country  and  in  this  State,  is  abundantly 
evident  from  the  cases  cited  from  our 
own  reports.  It  is  reasonable,  salutary, 
and  suited  to  the  genius  of  our  govern- 
ment and  the  nature  of  our  institutions. 
It  is  founded  on  great  principles  of  pub- 
lic policy,  and  carries  out  our  constitu- 
tional prohibition  of  monopolies  and 
exclusive  privileges.  The  unreasona- 
bleness of  contracts  in  restraint  of  trade 
and  business  is  very  apparent  from  seve- 
ral obvious  considerations.  1.  Such 
contracts  injure  the  parties  making 
them,  because  they  diminish  their 
means  of  procuring  livelihoods  and  a 
competency  for  their  families.  They 
tempt  improvident  persons,  for  the  sake 
of  present  gain,  to  deprive  themselves 
of  the  power  to  make  future  acquisi- 
tions. And  they  expose  such  persons 
to  imposition  and  oppression.  2.  They 
tend  to  deprive  the  public  of  the  ser- 
vices of  men  in  the  employments  and 
capacities  in  which  they  may  be  most 
useful  to  the  community  as  well  as 
themselves.  3.  They  discourage  indus- 
try and  enterprise,  and  diminish  the 
products  of  ingenuity  and  skill.  4.  They 
prevent  competition,  and  enhance  prices. 
5.  They  expose  the  public  to  all  the 
evils  of  monopoly.  And  this  especially 
is  applicable  to  wealthy  companies  and 
large  corporations,  who  have  the  means, 
unless  restrained  by  law,  to  exclude 
rivalry,  monopolize  business,  and  en- 
gross the  market.  Against  evils  like 
these,  wise  laws  jirotect  individuals  and 
the  public,  by  declaring  all  such  con- 
tracts void." 


en.  III.]  DEFENCES.  259 

was  held  good,  because  "  agreements  to  restrain  trade  in 
particular  places  are  valid  in  law,  and  may  be  enforced."  (c) 
In  the  case  of  Alger  v.  Thacher,  already  referred  to,  it  was 
argued  that  the  reason  of  the  law  against  such  contracts  had 
passed  away,  and  that  this  was  shown  by  an  extension  of  the 
exception  which  made  the  rule  itself  unmeaning;  for  it  could 
hardly  be  said  that  all  the  United  States  except  two  were 
any  "  particular  place,"  if  this  phrase  was  to  be  used  with 
any  reference  to  its  ordinary  meaning.  The  court,  however, 
were  of  opinion  that  although  the  connection  between  such 
contracts  and  the  law  of  apprenticeship  might  have  origina- 
ted the  rules  of  law  in  relation  to  these  contracts,  in  England, 
and  we  never  had  here  a  similar  law  or  usage  of  apprentice- 
ship, still  there  were  sufficient  reasons  for  sustaining  the  rule, 
in  this  country,  as  it  had  been  laid  down  in  previous  cases. 
This  may  be  regarded  as  a  leading  authority,  and  it  leaves 
no  other  question  than  as  to  what  shall  be  deemed  "  a  rea- 
sonable limitation."  If  this  question  is  to  be  answered  by  a 
reference  to  the  cases,  the  probable  conclusion  would  be, 
that  almost  any  limitation  would  suffice.  Still,  however, 
if  the  courts  adhere  to  the  rule  which  seems  now  to  be  esta- 
blished, the  limitation,  to  protect  the  contract,  must  be  bond 
fide,  and  not  a  slight  and  unreal  exception,  inserted  as  a  mere 
evasion  of  the  law. 


2.   Of  contracts  opposed  to  the  revenue  laws  of  other  countries. 

A  contract  which  violates  or  proposes  to  violate  the  reve- 
nue laws  of  the  country  in  which  it  is  made,  is  of  course 
void,  (a)  But  it  seems  to  be  quite  settled,  both  in  England 
and  in  this  country,  that  a  contract  may  lawfully  be  made 
for  the  purpose  of  violating  the  revenue  laws  of  a  foreign 

{z)  Stearns  v.  Barrett,  1  Pick.  443.  Cambioso  v.  MafFct,  2  Wash.  C.  C.  98; 

(a)  Johnson  v.  Hudson,  11  East,  180;  Hannay  v.  Eve,  3  Cranch,  242  ;  Light- 
Cope  V.  Eowlands,  2  M.  &  W.  149  ;  foot  v.  Tenant,  1  Bos.  &  P.  b'A  ;  Lang- 
Smith  V.  Mawhood,  14  M.  &  W.  452  ;  ton  r.  Hughes,  1  M.  &  S.  593;  Ritchie 
Meux  r.  Humphries,  3  C.-&  P.  79  ;  Hoi-  ?;.  Smith,  6  C.  B.  462 ;  Hodgson  v.  Tem- 
man  v.  Johnson,  Cowpcr,  341;  Arm-  pie,  5  Taunt.  183;  Catlin  v.  Bell,  4 
strong   V.    Toler,    11     Wheaton,    258;  Camp.  183. 


2G0  THE    LAW    OF    CONTRACTS.  [PART  II. 

country,  (b)  Perhaps  this  rule  is  the  necessary  result  of  the 
universal  antagonism  which  now  pervades,  to  some  extent, 
the  revenue  laws  of  all  the  states  in  Christendom.  Every- 
where duties  or  imposts  are  laid,  and  nowhere  is  there  any 
thought  of  regulating  them,  by  any  other  principle  than  that 
of  securing  the  greatest  gain  to  the  country  which  enacts 
them.  For  even  the  zealous  promoters  of  what  is  called  free 
trade  rest  their  arguments  in  its  favor  on  the  profitableness 
of  the  system  to  the  state  by  which  it  shall  be  adopted.  And 
while  it  may  seem  immoral  for  courts  to  sanction  the  breach 
of  the  positive  laws  of  a  foreign  state,  yet  it  is  too  much  to 
ask  of  them  to  enforce  an  observance  of  laws  made  almost 
professedly  against  the  interest  of  the  government  to  which 
they  belong.  The  rule  began  in  England,  when  the  courts 
could  not  have  adopted  any  other  without  breaking  up  the 
very  profitable  business  which  their  merchants  found  in  car- 
rying on  with  different  nations  of  the  continent  a  trade 
prohibited  by  the  laws  of  those  nations.  The  same  rule 
seems  to  be  extended  to  such  things  as  making  false  or  de- 
praved coin  or  counterfeit  paper  money,  for  use  in  a  foreign 
country,  although  it  is  not  perhaps  so  well  settled.  But  it 
is  obvious  that  arguments  might  be  urged  against  this  exten- 
sion of  the  rule,  which  would  not  apply,  at  least  with  equal 
force,  to  the  rule  itself. 


3.   Of  contracts  loliich  tend  to  corrupt  leyislation. 

All  those  whose  interests  are  to  be  affected  by  legislation, 
may,  both  morally  and  legally,  for  the  protection  or  advance- 
ment of  their  interests,  use  all  means  of  persuasion  which  do 
not  come  too  near  to  bribery  or  corruption ;  but  the  promise 
of  any  personal  advantage  to  a  legislator  is  open  to  this 
objection,  and  therefore  void,  (c) 

(h)  Boucher    v.    Lawson,    Cas.    T.  Louis.  Ann.  R.  25  ;  Pellccat  v.  Angcll, 

Ilardw.  84  ;  Ilolman  v.  Jolinson,  Cow-  2  Cr.  M.  &  K.  31 1, 

per,   341  ;  Bi;_'gs  v.  Lawrence,  3  T.  K.  (c)  Sec    Clippiii^;cr   v.    Hephaugh,  5 

454;    Ludlow  v.    Van    Kcnssclacr,    1  W.   &    S.   315;  Wood   v.   McCann,    6 

Jolins.  94;  Lightfoot  v.  Tenant,  1  Bos.  Dana,  3GG  ;   Coppock  v.  Bower,  4  M.  & 

&  P.  551  ;  Planche  v.  Fleteher,  Doug.  W.  3G1  ;  liatzlield  r.  Gulden,  7  Watts, 

251;  Kohn  t).  Sehooncr  Ilcnaisance,  5  152;  Norman  r.  Cole,  3  Esp.  253. 


CH. 


III.] 


DEFENCES. 


261 


4.   Of  warjering  contracts. 

It  was  formerly  held  in  England,  that  some  wagers  are 
valid  contracts  at  common  law.  [d)  But  they  have  been  recent- 
ly prohibited  by  statute  in  England  and  in  parts  of  this  coun- 
try ;  and  there  are  American  courts  which  have  denied  to  them 
any  validity  whatever,  {e)  Even  if  admitted  to  be  valid,  it 
is  certain  that  this  must  be  with  important  qualifications  ;  (/) 
as  for  instance,  that  they  shall  not  refer  to  another's  person 


{d)  Good  V.  Elliot,  3  T.  R.  693.  The 
wager  here  was,  whether  one  S.  T.  had, 
or  had  not,  before  a  certain  day,  bought 
a  wagon  belonging  to  D.  C.  So  a  wa- 
ger on  the  age  of  the  plaintiff  and  de- 
fendant has  been  held  good  at  common 
law.  Hussey  v.  Crickitt,  3  Campb.  168. 
And  see  Bland  v.  Collett,  4  Campb. 
157  ;  Fisher  r.  Waltham,  4  Q.  B.  889. 
So  a  wager  on  the  result  of  an  ap- 
peal from  the  Court  of  Chancery  to 
the  House  of  Lords  has  been  held  good, 
no  fraud  being  intended,  and  the  par- 
ties having  no  power  to  bias  the  deci- 
sion. Jones  V.  Randall,  Cowper,  37. 
And  so  of  a  wager  on  the  price  of 
foreign  funds.  Morgan  v.  Pebrer,  4 
Scott,  230.  So  of  a  wager  that  a  cer- 
tain horse  would  win  a  certain  race. 
Moon  r.  Durden.  2  Exch.  22.  By  the 
common  law  of  England,  therefore,  wa- 
gers were  not  per  se  void,  unless  they 
afl'ectcd  the  interests,  feelings,  or  cha- 
racter of  third  persons,  or  lead  to  inde- 
cent evidence,  or  were  contrary  to  pub- 
lic policy,  or  tended  to  immorality,  or 
to  a  breach  of  some  law.  Lord  Camp- 
bell, in  Thackoorseydass  v.  Dhondmull, 
6  Moore,  P.  C.  300 ;  Doolubdass  v.  Ram- 
loll,  3  Eng.  Law  &  Eq.  R.  39.  And  a  few 
early  decisions  in  America  inclined  the 
same  way.  Bunn  v.  Riker,  4  Johns. 
426  ;  Morgan  v.  Richards,  1  P.  A. 
Browne,  \l\  ;  Hasket  v.  Wootan,  1  Nott 
&  McC.  1 80 ;  Shepherd  v.  Sawyer,  2  Mur- 
phy, 26  ;  Grant  v.  Hamilton,  3  McLean, 
100;  Ross  V.  Green,  4  Harring.  308; 
Dunman  v.  Strother,  1  Texas,  89  ;  Bar- 
ret V.  Hampton,  2  Brevard,  226.  But  a 
different  view  was  taken  in  many  States, 
and  all  ivagers  were  considered  to  be 
illegal,   and  contrary   to   good   policy. 


Tims,  in  CoUamcr  v.  Day,  2  Vermont, 
144,  a  wager  that  a  certain  chaise  then 
in  sight  was  the  property  of  A.  and  not 
of  B.  was  held  void.  And  see  Amory 
V.  Gilman,  2  Mass.  1  ;  Babcock  v. 
Thompson,  3  Pick.  446;  Ball  v.  Gil- 
bert, 12  Met.  399,  Shaiv,  C.  J. ;  Hoit  v. 
Ilodge,  6  N.  H.  104  ;  Rice  r.  Gist,  1 
Strobh.  82;  Edgell  v.  McLaughlin,  G 
Wharton,  176;  Lewis  v.  Littletield,  15 
Maine,  233.  But  however  the  common 
law  may  be,  all  wagers  are  now  forbid- 
den in  ilngland  by  statute,  8  &  9  Vict., 
c.  109,  s.  18,  (1845)  and  similar  statutes 
exist  in  many  American  States.  Un- 
less special  provision  was  made  there- 
for, however,  they  would  not  have  a 
retrospective  operation  upon  actions 
commenced  before.     Moon  v.  Durden, 

2  Exch.  R.  22;  Doolubdass  v.  Ram- 
loll,  3  Eng,  Law  &  Eq.  R.  39. 

(e)  See  preceding  note.  And  see 
ante,  p.  139  and  notes. 

if)  Wagers  as  to  the  mode  of  play- 
ing, or  the  result  of  any  illegal  game, 
as  boxing,  wrestling,  cockfighting,  &c., 
ai'c  void  at  common  law.  Brown  v. 
Leeson,  2  H.  Bl.  43  ;  Egerton  v.  Furze- 
man,  1  C.  &  P.  613  ;  Kennedy  v.  Gad, 

3  C.  &  P.  376  ;  Squires  r.  "Whiskcn, 
3  Camp.  140;  Hunt  v.  Bell,  1  Bing. 
1  ;  McKeon  v.  Caherty,  1  Hall,  300 ; 
Hasket  v.  Wootan,  1  Nott  &  McC. 
180;  Atchison  v.  Gee,  4  McCord.  211. 
Money  lent  for  the  purpose  of  betting 
cannot  be  recovered  by  the  lender  of 
the  borrower.  Peck  v.  Briggs,  3  Denio, 
107  ;  Ruckman  v.  Bryan,  Id.  340.  And 
a  note  given  for  a  gaming  debt  is  void, 
even  in  the  hands  of  an  innocent  in- 
dorsee for  value.  linger  v.  Boas,  13 
Penn.  St.  601. 


262 


THE    LAW    OF   CONTRACTS. 


[part  II. 


or  properf.y,  (g-)  so  as  to  make  him  infamous,  or  to  be  libel- 
loas  or  indecent,  or  to  injure  his  property,  or  to  tend  to  break 
the  peace.  It  cannot  be  believed,  in  these  days,  that  wagers 
would  be  anywhere  upheld,  against  which  these  objections 
could  be  fairly  urged ;  and  upon  some  of  these  points  the 
authorities  are  quite  clear.  (//) 


5.  0/ maintenance  and  champerty. 


Maintenance  and  champerty  are  offences  at  common  law ; 
and  contracts  resting  upon  them  are  void.  But  those  offences, 
if  not  less  common  in  fact,  as  it  may  be  hoped  that  they  are, 
are  certainly  less  frequent  in  their  appearance  before  judicial 
tribunals  than  formerly  ;  and  recent  decisions  have  consider- 
ably qualified  the  law  in  relation  to  them.  Still,  however, 
they  are  offences,  and  contracts  which  rest  upon  them  are 
void.  Maintenance  in  particular  seems  now  to  be  confined 
to  the  intermeddling  of  a  stranger  in  a  suit,  for  the  purpose 
of  stirring  up  strife  and   continuing  litigation,  {i)     Nor  is 


(g)  Such  wapcrs  were  always  void  at 
common  law.  De  Costa  v.  Jones,  Cow- 
pcr,  729,  a  wager  as  to  tlic  sex  of  a 
third  person  ;  Philips  v.  Joel,  1  Rawle, 
37,  a  wager  that  Napoleon  Bonaparte 
would  he  removed  from  the  island  of 
St.  Helena  before  a  certain  time  ;  Ditch- 
burn  V.  Goldsmith,  4  Campb.  152,  a 
wager  that  an  unmarried  woman  would 
have  a  child  by  a  certain  day  ;  Hartley 
V.  Rice,  10  East,  22,  a  wager  that  a  cer- 
tain person  would  not  marry  within  a 
certain  number  of  years ;  Gilbert  v. 
Sykcs,  10  East,  150,  a  wager  on  tbc 
duration  of  the  life  of  Napoleon  Bona- 
parte, at  a  time  when  his  probable  as- 
sassination was  tlic  subject  of  specula- 
tion ;  Evans  v.  Jones,  5  M.  &  W.  77,  a 
wager  that  a  certain  prisoner  would  be 
acquitted  on  trial  of  a  criminal  charge. 
Some  of  these  cases  may  have  also  pro- 
ceeded upon  the  ground  of  jntblic  policy, 
and  as  having  an  injurious  tendency 
in  respect  to  puhlir.  ritjIUs. 

(/()  Wagers  upon  the  result  of  an 
election  have  always  been  considered 
a.s  void,  on  both  sides  of  the  Atlantic, 
as  being  contrary  to  sound  policy,  and 
tending  to  impair  the  purity  of  elections. 


Ballf.  Gilbert,  12  Met.  397;  Allen  v. 
Heam,  1  T.  R.  5G  ;  McAllister  v.  Hoff- 
man, 16  S.  &  R.  147  ;  Smyth  i-.  McMas- 
ters,  2  r.  A.  Browne,  182;  Bunn  v. 
Riiicr,  4  Johns.  426  ;  Lansing  v.  Lan- 
sing, 8  Johns.  454 ;  Viseher  r.  Yates, 
11  Johns.  23;  Yates  v  Foot,  12  Johns. 
1  ;  Rust  V.  Gott,  9  Cowen,  169;  Stod- 
dard V.  Martin,  1  Rliode  Is.  1  ;  Dennis- 
ton  u.  Cook,  12  Johns.  376;  Brush  v. 
Keeicr,  5  Wend.  250  ;  Lloyd  v.  Leiscn- 
ring,  7  Watts,  294  ;  Wagonsellcr  i-.  Sny- 
der, 7  Watts,  343 ;  Wrotii  v.  Johnson, 
4  Harr.  &  McH.  284  ;  Laval  v.  Myers. 
1  Bailey,  486 ;  David  v.  Ransom,  1 
Greene,"^  383;  Davis  v.  Ilolbrook.  1 
Louis.  Ann.  176;  Tarleton  v.  Baker, 
18  Verm.  9  ;  Commonwealth  v.  Bash,  9 
Dana,  31  ;  Machir  r.  Moore,  2  Gratt. 
257 ;  Foreman  v.  Hardwick,  10  Ala. 
316;  Wheeler  v.  Spencer,  15  Conn.  28; 
Russell  V.  Byland,  2  Humph.  131  ;  Bor- 
ter  V.  Sawyer,  1  Harring.  517:  Gard- 
ner V.  Nolen,  3  Id.  420  ;  IIicker.son  v. 
JBenson,  8  Missouri,  8. 

({)  See  on  this  subject.  Masters  v. 
Miller,  4  T.  R.  340;  Flight  v.  Leman, 
4  Q.  B.  883  ;  Bell  r.  Smith,  5  B.  &  C. 
188;   Williamson   v.   Henley,    6    Bing. 


CH.  III.] 


DEFENCES. 


263 


any  one  liable  to  this  charge  who  gives  honest  advice  to  go 
to  law,  or  advances  money  from  good  motives  to  support  a 
suit,  or  if  he  stands  towards  the  person  who  is  the  party  to 
the  suit  in  any  intimate  relation,  as  of  landlord,  father  or 
son,  or  master,  or  husband,  [j) 

Champerty  is  treated  as  a  worse  offence  ;  for  by  this  a 
stranger  supplies  money  to  carry  on  a  suit,  on  condition  of 
sharing  in  the  land  or  other  property  gained  by  it.  And 
contracts  of  this  sort  are  set  aside  both  at  law  and  in  equity. 
And  any  agreements  to  pay  part  of  the  sum  recovered,  whe- 
ther by  commission  or  otherwise,  on  consideration  either  of 
money  advanced  to  maintain  a  suit,  or  services  rendered,  or 
information  given,  or  evidence  furnished,  come  within  the  defi- 
nition of  champerty,  (k)     And  this  has  also  been   extended 


299.  It  lias  been  considered  mainte- 
nance for  an  attorney  to  agree  to  save 
a  party  harmless  from  costs,  provided 
he  be  allowed  one  half  of  the  proceeds 
of  the  suit  in  case  of  success.  Masters, 
In  re,  4  Dowl.  18.  And  see  Harrington 
V.  Long,  2  My;  &  K.  590.  But  one 
may  lawfully  agree  to  promote  a  suit, 
where  he  has  reasonable  ground  to  be- 
lieve himself  interested,  although  in 
fact  he  is  not  so.  Findon  v.  Parker, 
11  M.  &  W.  675.  In  Call  v.  Calcf,  13 
Met.  362,  it  appeared  that  A.  had  an 
interest  in  the  exclusive  use  in  Man- 
chester, N.  H.,  of  a  certain  patent  ma- 
chine, and  B.  had  an  interest  in  the  ex- 
clusive use  of  the  same  machine  in  Low- 
ell. S.  was  using  said  machine  in  Man- 
chester, without  right.  A.  gave  to  B.  a 
power  of  attorney,  authorizing  him  to 
take  such  steps  in  A.'s  name  as  B.  might 
judge  to  be  necessary  or  expedient,  by 
suit  at  law  or  otherwise,  to  prevent  S. 
from  using,  letting,  or  selling  said  ma- 
chine in  Manchester,  and  also  author- 
izing B.  to  sell  to  S.thc  right  to  use  said 
machine  in  Manchester.  And  by  a  pa- 
rol agreement  between  A.  and  B.,  B. 
was  to  have,  as  his  compensation  for 
his  services  under  said  power  of  attor- 
ney, one  half  of  what  he  siiould  recover 
or  receive  of  S.  B.  rendered  services 
under  said  power,  for  whicli  he  was  en- 
titled by  said  parol  agreement  to  $25. 
A.  afterwards  assigned  his  right  to  the 
use  of  said  machine  to  C,  with  notice 
of  B.'s  claim  on  A.,  and  with  authoritv 


to  C.  to  revoke  said  power  of  attorney 
to  B.,  upon  paying  B.  §25.  C.  pro- 
mised B.  to  pay  him  said  sum,  and  B. 
consented  to  the  revocation  of  the  power 
of  attorney.  B.  afterwards  brought  an 
action  against  C.  to  recover  said  sum 
of  $25.  Held,  that  the  parol  agreement 
between  A.  and  B.  was  not  illegal  and 
void  on  the  ground  of  maintenance  and 
champerty,  but  was  a  valid  agreement, 
since  the  unauthorized  use  of  the  patent 
in  either  place  would  diminish  the  value 
and  profits  of  the  patent  in  the  other, 
and  therefore  B.  had  a  direct  interest  in 
preventing  the  violation  of  the  patent 
right ;  that  C.'s  promise  to  pay  B.  said 
sum  was  on  a  good  and  sufficient  con- 
sideration ;  and  that  the  action  could 
be  maintained. 

[j)  Ferine  v.  Dunn,  3  Johns.  Ch. 
508 ;  Thallhimer  v.  Brinckerhoff",  3  Cow. 
647. 

[k)  Stanley  v.  Jones,  7  Bing.  369  ; 
Thurston  v.  Percival,  1  Pick.  415  ;  La- 
thro])  V.  Amherst  Bank,  9  Met.  489,  an 
excellent  case  on  this  subject;  Byrd  v. 
Odem,  9  Ala.  755  ;  Satterlee  v.  Erazer, 
2  Sandf.  141  ;  Holloway  v.  Lowe,  7 
Porter,  488;  Key  r.  Vattier,  1  Ham. 
58  ;  Rust  V.  Larue,  4  Litt.  417.  It 
has  been  held  in  Kentucky,  that  a  con- 
tract by  a  client  to  jiay  his  attorney  "a 
sum  equal  to  one  tenth  of  the  amount 
recovered,"  was  not  void  for  ciiamperty. 
Evans  v.  Bell,  6  Dana,  479  ;  Wilhite  v. 
Roberts,  4  Dana,  1 72. 


264  THE   LAW   OF    CONTRACTS.  [I'ART  II. 

to  cover  many  cases  of  the  purchase  of  a  doubtful  title  to 
land,  by  a  stranger,  of  one  not  in  possession,  but  of  land  which 
he  who  has  possession  holds  adversely  to  the  title.  (/) 


SECTION  XIII. 
OF   FRAUD. 

We  have  had  repeated  occasion  to  remark,  that  fraud 
avoids  every  contract,  and  annuls  every  transaction  ;  and  to 
illustrate  this  principle  in  its  relation  to  many  of  the  kinds  of 
contracts  which  we  have  already  considered.  But  there  are 
some  general  remarks  on  the  subject  of  fraud,  especially 
when  considered  as  a  defence  to  an  action  brought  upon  a 
contract,  which  we  would  now  make,  avoiding  a  repetition 
of  what  has  been  already  said,  as  far  as  may  be. 

It  is  sometimes  asserted  that  the  distinction  in  the  civil 
law  between  dolus  mains  and  dolus  bonus  is  unknown  to  the 
common  law ;  and  it  is  true  that  we  have  no  such  distinc- 
tion expressed  in  words  which  are  an  exact  translation  of  the 
Latin  words.  But  it  is  also  true  that  the  distinction  is  itself, 
substantially,  a  part  not  only  of  the  common  law,  but  neces- 
sarily of  every  code  of  human  law.  For  it  is  precisely  the 
distinction  between  that  kind  and  measure  of  craft  and  cun- 
ning which  the  law  deems  it  impossible  or  inexpedient  to 
detect  and    punish,  and  therefore  leaves  unrecognized,  and 

(/)  This  was  forbidden  by  the  English  on  tlie  ground  of  champerty,  the  cora- 

stat.  32  Henry  8,  c.  9,  against  buying  up  mon-hiw  offence  must  be  complete,  to 

pretended  titles,  which  was  at  an  early  constitute  which   it   must   not  only  be 

day  enacted  in  some  American  States,  proved  that  there  was  adverse  posscs- 

and    in    others    adojjted    by    practice,  sion  at   the  time  of  sale,  but  that  the 

See  Brinlcy  v.  Whiting,  5  Pick.  3.53 ;  purchaser  had  knowledge  of  such  ad- 

Whitakcr     v.     Cone,    2    Johns.     Cas.  verse  possession ;  tliis  is  especially  the 

58;  Bclding  v.  I'itkin,  2  Caines,  147;  case   where   the    laud    granted    was  in 

McGoon   r.   Ankeny,  11  III.  ."i 58.     But  forest  and  wild  at  the  time  of  the  grant 

sec  Cresinger  v.   Lessee  of  Welcli,  15  Sessions  v.  Keynolds.  7   Sm.    &   Mar 

Ohio,   156:  Edwards  r.  Parkhurst,  21  132.     In   many    Stated    such   a    trans 

Vermont,    472 :  Dunbar  v.   McFall,   9  action    never    was    considered    illegal 

Humph.  505.     The  English  statute  of  See    Friz/.le  v.   Veach,    1    Dana,    211 

32  Hen.  8,  c.  9,  on  tlic  subject  of  cham-  Stoever   v.    Whitman,    0    Binn.    416; 

perty    is  not    in   force    in   Mississippi.  Iladduck  r.  Wilmarth,  5  N.  H.  181. 
la  order,  therefore,  to  avoid  a  contract 


Cir.  HI.]  DEFENCES.  265 

that  worse  kind  and  higher  degree  of  craft  and  cunning 
which  the  law  prohibits,  and  of  which  it  takes  away  all  the 
advantage  from  him  by  whom  it  is  practised. 

The  law  of  morality,  which  is  the  law  of  God,  acknow- 
ledges but  one  principle,  and  that  is  the  duty  of  doing  to 
others  as  we  would  that  others  should  do  to  us,  and  this 
principle  absolutely  excludes  and  prohibits  all  cunning;  if  we 
mean  by  this  word  any  astuteness  practised  by  any  one  for 
his  own  exclusive  benefit.  But  this  would  be  perfection ; 
and  the  law  of  God  requires  it  because  it  requires  perfection  ; 
that  is,  it  sets  up  a  perfect  standard,  and  requires  a  constant 
and  continual  effort  to  approach  it.  But  human  law,  or 
municipal  law,  is  the  rule  which  men  require  each  other  to 
obey ;  and  it  is  of  its  essence  that  it  should  have  an  effectual 
sanction,  by  itself  providing  that  a  certain  punishment 
should  be  administered  by  men,  or  certain  adverse  conse- 
quences take  place,  as  the  direct  effect  of  a  breach  of  this 
law.  If  therefore  the  municipal  law  were  identical  with  the 
law  of  God,  or  adopted  all  its  requirements,  one  of  three  con- 
sequences must  flow  therefrom ;  either  the  law  would  be- 
come confessedly,  and  by  a  common  understanding,  power- 
less and  dead ;  or  society  would  be  constantly  employed  in 
visiting  all  its  members  with  punishment ;  or,  if  the  law 
annulled  whatever  violated  its  principles,  by  far  the  greater 
part  of  human  transactions  would  be  rendered  void.  There- 
fore the  municipal  law  leaves  a  vast  proportion  of  unques- 
tionable duty  to  motives,  sanctions,  and  requirements  very 
different  from  those  which  it  supplies.  And  no  man  has  any 
right  to  say,  that  whatever  human  law  does  not  prohibit, 
that  he  has  a  right  to  do ;  for  that  only  is  right  which  vio- 
lates no  law,  and  there  is  another  law  besides  human  law. 
Nor,  on  the  other  hand,  can  any  one  reasonably  insist,  that 
whatever  one  should  do  or  should  abstain  from  doing,  this 
may  properly  be  made  a  part  of  the  municipal  law,  for  this 
law  must  necessarily  fail  to  do  all  the  great  good  that  it  can 
do,  and  ^therefore  should,  if  it  attempts  to  do  that  which, 
while  society  and  human  nature  remain  what  they  are,  it 
cannot  possibly  accomplish. 

It  follows  that  a  certain  amount  of  selfish  cunning  passes 

VOL.  II.  23 


266  THE  LAW  OF  CONTRACTS.  [PART  II. 

unrecognized  by  the  law  ;  that  any  man  may  procure  to 
himself,  in  his  dealings  with  other  men,  some  advantages  to 
which  he  has  no  moral  right,  and  yet  succeed  perfectly  in 
establishing  his  legal  right  to  them.  But  it  follows  also,  that 
if  any  one  carries  this  too  far ;  if  by  craft  and  selfish  con- 
trivance he  inflicts  injury  upon  his  neighbor  and  acquires  a 
benefit  to  himself,  beyond  a  certain  point,  the  law  steps  in, 
and  annuls  all  that  he  has  done,  as  a  violation  of  law.  The 
practical  question,  then,  is,  where  is  this  point ;  and  to  this 
question  the  law  gives  no  specific  answer.  And  it  is  some- 
what noticeable,  that  the  common  law  not  only  gives  no 
definition  of  fraud,  but  perhaps  asserts  as  a  principle,  that 
there  shall  be  no  defmition  of  it.  And  the  reason  of  this 
rule  is  easily  seen.  It  is  of  the  very  nature  and  essence  of 
fraud  to  elude  all  laws,  and  violate  them  in  fact,  without 
appearing  to  break  them  in  form  ;  and  if  there  were  a  tech- 
nical definition  of  fraud,  and  every  thing  must  come  within 
the  scope  of  its  words  before  the  law  could  deal  with  it  as 
fraud,  the  very  defiinition  would  give  to  the  crafty  just  what 
they  wanted,  for  it  would  tell  them  precisely  how  to  avoid 
the  grasp  of  the  law.  "Whenever,  therefore,  any  court  has 
before  it  a  case  in  which  one  has  injured  another,  directly  or 
indirectly,  by  falsehood  or  artifice,  it  is  for  the  court  to  deter- 
mine in  that  case  whether  what  was  done  amounts  to  cog- 
nizable fraud.  Still,  this  important  question  is  not  left  to 
the  arbitrary,  or,  as  it  might  be,  accidental  decision  of  each 
court  in  each  case ;  for  all  courts  are  governed,  or  at  least 
directed,  by  certain  rules  and  precedents,  which  we  will  now 
consider. 

In  the  first  place,  it  is  obvious  that  the  fraud  must  be  ma- 
terial to  the  contract  or  transaction,  which  is  to  be  avoided 
because  of  it ;  for  if  it  relate  to  another  matter,  or  to  this 
only  in  a  trivial  and  unimportant  way,  it  affords  no  ground 
for  the  action  of  the  court,  (m)     It  must  therefore  relate  dis- 

(?«)  Thus,  it  seems  that  a  misreprc-  1  Barbour,  471,  it  is  Paid  that  in  order 

scntation  by  a  vendor  of  a  horse,  as  to  to  avoid  a  contract  of  sale  on  the  ground 

tlic  place  where   he   bought   it,  is  not  of  misrepresentation,   there   must    not 

sucli  a  material  fraud  as  will  avoid  the  only  have  been  a  misrepresentation  of  a 

sale  of  the  liorse.     Geddcs  v.  Tcnning-  material  fact  constituting  the   basis  of 

ton,  5  Dow,  159.    In  Taylor  v.  Fleet,  the  sale,  but  the  purchaser  must  have 


en.  III.] 


DEFENCES. 


267 


tinctly  and  directly  to  this  contract;  and  it  must  affect  its 
very  essence  and  substance.  (»)  But,  as  before,  we  must 
say  that  there  is  no  positive  standard  by  which  to  determine 
whether  the  fraud  be  thus  material  or  not.  Nor  can  we  give 
a  better  rule  for  deciding  the  question  than  this  ;  if  the  fraud 
be  such,  that,  had  it  not  been  practised,  the  contract  would 
not  have  been  made,  or  the  transaction  completed,  then  it  is 
material  to  it ;  but  if  it  be  shown  or  made  probable  that  the 
same  thing  would  have  been  done  by  the  parties,  in  the 
same  way,  if  the  fraud  had  not  been  practised,  it  cannot  be 
deemed  material.  Whether  the  fraud  be  material  or  other- 
wise seems  to  be,  on  the  decided  weight  of  authority,  a  ques- 
tion for  the  jury,  and  not  a  question  of  law;  (o)  but  it  is 


made  the  contract  upon  the  faith  and 
credit  of  such  representation.  At 
least,  he  must  so  far  have  relied  upon 
it  as  that  he  would  not  have  made 
the  purchase  if  such  representation  had 
not  lieen  made.  In  that  case  a  person 
about  to  purchase  a  farm  was  ignorant 
of  the  actual  character  and  capabilities 
of  the  land,  and  had  no  means  of  ob- 
taining such  knowledge  except  by  in- 
formation to  he  derived  from  others ; 
and  the  owner,  with  a  knowledge  that 
the  purchaser's  object  was  to  obtain  an 
early  farm,  and  that  his  farm  was  not 
as  early  as  the  lands  lying  in  the  neigh- 
borhood, represented  to  such  purchaser 
"  that  there  was  no  earlier  land  any- 
where about  there,"  and  the  latter,  re- 
lying upon  the  truth  of  that  representa- 
tion, made  the  purchase;  and  after  as- 
certaining by  actual  experiment  that 
the  land  was  not  what  it  had  been 
represented  to  be,  he  applied  to  the 
vendor,  within  a  reasonable  time,  to 
rescind  the  bargain,  who  refused  to  do 
so.  Ihid,  that  this  furnislted  a  suffi- 
cient ground  for  the  interference  of  a 
court  of  equity  to  rescind  the  contract, 
even  though  there  was  no  intention  on 
the  part  of  the  vendor  to  deceive  the 
purchaser.  As  to  the  necessity  of  ma- 
teriality, see  Camp  v.  Pulver,  5  IJarb. 
91. 

(n)  Thus,  in  Green  v.  Gosden,  4  Scott, 
N.  K.  13,  .3  M.  &  Gr.  446,  to  a  count  in 
debt  on  a  promissory  note,  the  defend- 
ant pleaded  that  the  note  was  obtanied 
from  him  by  the  plaintiffs  and  others  in 
collusion  with  them,  by  fraud,    covin, 


and  misrepresentation,  wherefore  the 
note  was  void  in  law ;  it  was  held,  that  this 
plea  was  not  sustained  by  evidence  that 
the  note  was  given  by  the  defendant  and 
another,  as  sureties,  for  a  sum  advanced 
to  a  third  person  by  the  plaintiffs,  who 
falsely  held  themselves  out  to  the  world 
as  a  society  formed  and  acting  under 
certain  rules  and  regulations  ;  the  fraud 
proved  not  having  sucii  a  relation  to  the 
particular  transaction  as  to  amount  to 
fraud  in  point  of  law.  So  in  Vane  v. 
Colibold,  1  Exch.  798,  in  an  action  by 
an  allottee  of  a  railway  company  for 
the  recovery  of  his  deposit,  it  appeared 
that  the  company  issued  a  prospectus, 
which  stated  the  capital  to  consist  of 
60,000  shares  of  £2b  each,  and  the 
plaintiff,  after  having  paid  his  deposit, 
executed  the  subscrii)ers'  agreement, 
which  contained  the  usual  terms  as  to 
the  disposition  of  the  deposits  ;  at  the 
time  when  he  executed  the  deed,  the  de- 
posits upon  18,160  shares  only  had  been 
I)aid,  although  3.5,000  shares  liad  been 
allotted,  which  fact  was  not  communi- 
cated to  him.  Hdd,  that  the  withhold- 
ing of  the  above  fact  did  not  amount  to 
such  a  fraud  as  to  avoid  the  deed,  and 
that  the  plaintiff  was  not  entitled  to  re- 
cover back  his  deposit.  In  Edwards  v. 
Owen,  15  Ohio,  500,  it  was  held  tliat  a 
special  action  on  the  case  may  be  sus- 
tained against  a  debtor,  for  fraudulent- 
ly representing  himself  insolvent,  and 
thereby  inducing  bis  creditor  to  dis- 
charge a  promissory  note  for  less  than 
its  value. 

(o)  Westbury  v.  Aberdein,.  2   M.  & 


268 


THE   LAAY   OF    CONTRACTS. 


[PART  II. 


obvious   that  in    many  cases  the  jury  cannot  answer  this 
question  without  instructions  from  the  court. 

In  the  next  place,  the  fraud  must  work  an  actual  injury. 
If  it  be  only  an  intended  fraud,  which  is  never  carried  into 
effect,  or  if  all  be  done  that  was  intended,  but  the  expected 
consequences  do  not  result  from  it,  the  law  cannot  recognize 
it.  (p)  And  if  there  be  a  fraud,  and  it  be  actually  injurious, 
the  injured  party  can  recover  only  the  damage  directly  attri- 
butable to  the  fraud,  (q)  and  not  any  increase  of  this  damage 


W.  267  ;  Lindcnau  v.  Dcsborough,  8 
B.  &  C.  586;  Huguenin  v.  Rayley,  6 
Taunt.  186.  If  the  fraud  was  material 
to  the  contract,  it  has  been  said  that  it 
is  not  necessary  that  it  should  have 
been  practised  7nalo  animo.  Moens  v. 
Hey  worth,  10  M.  &,  W.  155,  where 
Lord  Ahingcr  said :  —  "  The  fraud  which 
vitiates  a  contract,  and  gives  a  party  a 
right  to  recover,  docs  not  in  all  cases 
necessarily  imply  moral  turpitude. 
There  may  be  a  misrepresentation  as 
to  the  facts  stated  in  the  contract,  all 
the  circumstances  in  which  the  party 
may  believe  to  be  true.  In  policies  of 
insurance,  for  instance,  if  an  insurer 
makes  a  misrepresentation,  it  vitiates 
the  contract ;  such  contracts  are,  it  is 
true,  of  a  peculiar  nature,  and  liave  re- 
lation as  well  to  the  rights  of  the  parties 
as  the  event.  In  the  case  of  a  contract 
for  the  sale  of  a  public  house,  if  the 
seller  represent  by  mistake  that  the 
house  realized  more  than  in  fact  it  did, 
he  would  be  defrauding  the  purchaser, 
and  deceiving  him  ;  hut  that  might  arise 
from  his  not  having  kept  proper  books, 
or  from  non-attention  to  his  affairs  ; 
yet,  as  soon  as  the  other  party  discovers 
it,  an  action  may  be  maintained  for  the 
loss  consequent 'upon  such  misrepre- 
sentation, inasmuch  as  he  was  thereby 
induced  to  give  more  than  the  house 
was  worth.  That  action  might  be  sus- 
tained upon  an  allegation  that  the  re- 
presentation was  false,  although  the 
party  making  it  did  not  know  at  the 
time  he  made  it  that  it  was  so."  And 
see  Lindcnau  v.  Dcsborough,  supra; 
Maynard  v.  Rhodes,  5  D.  &  R.  266  ; 
Everett  v.  Dcsborough,  5  Bing.  503  ; 
Elton  V.  Larkins,  5  C.  &  P.  86.  "  But  it 
has  been  held  that  if  a  fixet  is  collateral 
only,  and  the  statement  of  it,  though 


made  at  the  time  of  entering  into  the 
contract,  is  not  embodied  in  it,  the  eon- 
tract  cannot  be  set  aside  merely  on  the 
ground  that  such  statement  was  untrue ; 
it  must  be  shown  that  the  party  making 
it  knew  it  to  be  untrue,  and  that  the 
other  was  thereby  induced  to  enter  into 
the  contract.  Moens  v.  Ilcyworth,  10 
M.  &  W.  147.  And  see  McDonald  v. 
Trafton,  15  Maine,  225  ;  Wilson  v. 
Butler,  4  Bing.  N.  C.  748. 

(p)  Hemingway  v.  Hamilton,  4  M.  & 
W.  115.  Lord  Abinger  there  said:  — 
"  Suppose  a  man  contracts  in  writing 
to  sell  goods  at  a  certain  price,  and 
afterwards  delivers  them,  could  tlie  buy- 
er plead,  that  at  the  time  of  the  contract 
the  seller  fraudulently  intended  not  to 
deliver  them,  but  to  dispose  of  them 
otherwise  1 "'  In  Ecret  v.  Hill,  23  Law 
Times  Rep.  158,  it  was  held  that  an  in- 
tention existing  in  the  mind  of  one  of 
the  parties  to  a  contract,  to  use  the 
thing  therein  contracted  for,  in  an  ille- 
gal manner,  would  not  render  the  con- 
tract illegal,  although  he  fraudulently 
induced  the  other  party  to  enter  into 
the  contract,  by  stating  that  he  wanted 
the  property  for  a  legal  purpose. 

{(])  Per  Lord  EUtnhorough,  in  Vernon 
V.  Keys,  12  East,  632.  Where  an  ac- 
tion was  brought  to  recover  the  value 
of  certain  horses,  alleged  to  have  died 
from  eating  corn  mixed  with  arsenic, 
which  the  plaintiff  bought  from  the  de- 
fendant, it  was  held,  that  notwithstand- 
ing the  defendant  had  fraudulently  con- 
cealed from  the  plaintiff'  the  fact  that 
arsenic  was  so  mixed  with  the  corn,  yet, 
if  the  plaintiff"  was  informed  of  tlic  fact 
before  he  gave  it  to  his  horses,  he  could 
only  recover  damages  to  the  value  of 
the  corn.  Stafford  v.  Newsom,  9  Ired. 
507.     In  Tuckwcll  v.  Lambert,  5  Cush. 


en.  III.] 


DEFENCES. 


2C9 


caused  by  his  own  indiscretion  or  mistake  in  relation  to  it.  (r) 
And  if  no  damage  be  caused  by  the  fraud,  no  action  lies,  (s) 
Though  the  law  cannot  lay  hold  of  a  merely  intended  fraud, 
yet  it  will  recognize  as  a  fraud  a  statement  which  is  literally 
true,  but  substantially  false  ;  for  the  purpose  and  effect  of  the 
thing  will  prevail  over  its  form  ;  as  if  one  asserts  that  an- 
other, whom  he  recommends,  has  property  to  a  certain 
amount,  knowing  all  the  while,  that  although  he  possesses 
this  property,  he  owes  for  it  more  than  it  is  worth.  (^)  And 
there  are  indeed  cases  in  which  the  intention  seems  to  con- 
stitute the  fraud,  and  to  have  the  force  and  effect  of  fraud. 
For  if  one  buys  on  credit,  but  does  not  pay,  still  the  title  of 
the  goods  is  in  him  ;  but  if  one  buys  on  credit,  intending  not 
to  pay,  this  is  an  actual  fraud,  and  it  avoids  the  sale  entirely, 
so  that  no  property  passes  to  the  purchaser,  (w)  If  the  ques- 
tion were  res  nova,  perhaps  it  might  be  doubted  whether  the 


23,  the  purchaser  of  a  vessel,  falsely 
and  fraudulently  represented  by  the 
seller  as  eighteen  instead  of  twenty- 
eight  years  old,  having  sent  her  to  sea 
before  he  had  knowledge  that  such  re- 
presentation was  false,  and  the  vessel 
being  afterwards  condemned  in  a  foreign 
port,  it  was  held,  that  the  purchaser  was 
entitled  to  recover  his  actual  damages, 
occasioned  by  sending  the  vessel  to  sea, 
not  exceeding  the  value  of  the  vessel. 

(r)  Thus,  in  Corbett  v.  Brown,  5  C. 
&  P.  363,  it  was  held  that  a  tradesman 
can  only  recover  against  a  person  mak- 
ing a  false  representation  of  the  means 
of  one  who  referred  to  him,  such  da- 
mage as  is  justly  and  immediately  refer- 
able to  the  false  representation.  There- 
fore, if  the  tradesman  gives  an  indiscreet 
and  ill-judging  credit,  he  cannot  make 
the  referee  answerable  for  any  loss  occa- 
sioned by  it. 

(s)  Morgan  v.  Bliss,  2  Mass.  112  ;  Ful- 
ler V.  Hodgdon,  25  Maine,  243 ;  Idc  v. 
Gray,  11  Verm.  615;  Farrar  v.  Alston, 
1  Dev.  69. 

(«)  Corbett  v.  Brown,  8  Bing.  33,  1 
Moore  &  Scott,  85.  In  this  case  the 
defendant's  son  having  purchased  goods 
from  the  plaintiffs  on  credit,  they  wrote 
to  the  defendant,  requesting  to  know 
whether  his  son  had,  as  he  stated,  £300 
capital,  his  own  property,  to  commence 

23* 


business  with  ;  to  which  the  defendant 
replied,  that  his  son's  statement  as  to 
the  £300  was  perfectly  correct,  as  the 
defendant  had  advanced  him  the  mo- 
ney. It  was  proved  that,  at  the  time 
of  the  advance,  the  defendant  had  taken 
a  promissory  note  from  his  son  for  £300, 
payable  on  demand,  with  interest,  which 
interest  was  paid.  Six  months  after 
the  communication  to  the  plaintiffs,  the 
defendant's  son  became  bankrupt.  Held, 
that  it  was  properly  left  to  the  jury  to 
say  whether  the  representation  made  by 
the  defendant  was  false  within  his  own 
knowledge ;  and,  the  jury  having  found 
a  verdict  for  him,  the  court  granted  a 
new  trial.  Denny  v.  Oilman,  26  Maine, 
149,  also  shows  that  a  representation 
may  be  literally  true,  and  yet  if  made 
with  intent  to  deceive,  and  it  does  deceive 
another  to  his  injury,  the  author  may 
be  liable.  It  is  perhaps  on  this  ground 
that  a  second  vendee  of  land,  who  takes 
liis  deed  with  knowledge  of  a  prior  un- 
recorded deed,  cannot  hold  the  estate, 
although  he  complies  with  the  letter  of 
the  statute  by  first  putting  his  deed  on 
record.  See  Ludlow  v.  Gill,  1  D.  Chip. 
49. 

(u)  Sec  Earl  of  Bristol  r.  Wilsmore, 
1  B.  &  C.  514  ;  Ash  v.  Putnam,  1  Hill, 
302  ;  Ferguson  v.  Carrington,  9  B.  &  C. 
59.  And  see  Load  y.  Green,  15  M.  & 
216. 


270  THE   LAW   OF   CONTRACTS.  [PART  II. 

rule  established  by  these  cases  is  correct.  It  is  clear  that  if 
a  purchaser  makes  false  representations  of  his  ability  to  pay, 
his  property,  or  credit,  the  sale  is  void,  and  no  title  passes  as 
between  the  original  parties  to  the  contract,  (v)  But  it  is 
equally  true,  that  the  mere  insolvency  of  the  purchaser,  and 
his  utter  inability  to  pay  for  goods  when  purchased,  although 
well  known  to  himself,  will  not  avoid  the  sale,  if  no  false 
representations  or  means  are  used  to  induce  the  vendor  to 
part  with  his  goods,  (w) 

In  the  next  place,  it  must  appear  that  the  injured  party 
not  only  did  in  fact  rely  upon  the  fraudulent  statement,  {x) 
but  had  a  right  to  rely  upon  it  in  the  full  belief  of  its  truth  ; 
for  otherwise  it  was  his  own  fault  or  folly,  and  he  cannot  ask 
of  the  law  to  relieve  him  from  the  consequences,  (t/)  On 
the  other  hand,  where  a  party  is  obliged  to  rely  upon  the 
statements  of  another,  and  not  only  may,  but  should  repose 
peculiar  confidence  in  him,  this  is  in  the  nature  of  a  special 
trust,  and  the  law  is  very  jealous  of  a  betrayal  of  this  trust, 
and  visits  it  with  great  severity.  This  principle  is  carried  to 
its  utmost  extent  in  the  case  of  persons  charged  expressly 
with  trusts,  either  by  the  cestui  que  trust,  or  others  for  him,  or  by 
the  act  of  the  law ;  as  we  have  shown  in  speaking  of  trustees. 

(v)  Gary  v.  Hotailing,  1  Hill,  311;  had  no  legal  right  to  rely,  the  contract 
Andrew  v.  Dieterich,  14  Wend.  31  ;  is  not  avoided  by  the  fraudulent  intent 
Johnson  r.  Tcck.  1  Wood.  &  Min.  334;  of  the  other  party.  See  Clopton  v.  Co- 
Lloyd  V.  Brewster,  4  Paige,  537.  zart,  13  S.  &  M.  363  ;  Anderson  v.  Bur- 

(iv)  Cross  V.  Peters,  1   Grcenl.  378.  °'="^,^^?^^:•  t^^l^T' Vr^^  Ao^°TT^.'"° 

And  see  Convers  v.  Ennis,  2  Mason,  v.  Wadleigh,  7  Blackf  102.    And  it  is 

236  ;  and  the  excellent  case  of  Powell  "Po^  this  ground  that  a  misrepresenta- 

V.  Bradlee,  9  Gill  &  Johns.  220.  tion  as  to  the  legal  efiect  of  an  agree- 
ment does  not  constitute  such  a  fraud 

(x)  It  is  not  necessary  that  a  vendor  ^^g  ^^.jn  ^^oid  the  instrument,  since  every 

should  rely  soIpIij  upon  the  fraudulent  person  is  supposed  to  know  the  legal 

statements  of  the  defendant  as  to  tlic  ^^^^f.^  ^f  ^^  instrument  which  he  signs, 

solvency  of  a  third  person,  in  order  to  ^^^^^  therefore  has  no  right  to  rely  upon 

give  a  right  of  action.    It  is  sufficient  if  ^^^  statements  of  the  other  partv.  Lewis 

the  goods  were  parted  with  upon  such  ,,    joncs,  4   B.  &  C.  506  ;    Kussell  r. 

representations,    and   would   not   have  Branham,    8   Blackf.    277.      And    sec 

been  but  for  them.     Addington  v.  Al-  ^^^^.^  ,.    Bennett,  5  Hill,  303.     If  the 

Icn,  11  Wend.  375;  Young  v.  Uall,  4  truth  or  falsehood  of  the  rppresentations 

Georgia,  95.  might  have  been  tested  by  ordinary  vi- 

(i/)  If  therefore   the  party  to  whom  gilance  and  attention,  it  is  the  party's 

false  statements  were  made  knew  them  own  folly  if  he  neglected  to  do  so,  and 

to  be  false,  or  suspected  them  to  be  so,  he  is  remediless.   Moore  v.  Turbevillc,  2 

and  did  not  at  all  rely  upon  them  ;  or  if  Bibb,  602  ;  Saunders  v.   Ilatterman,  2 

the  statements  consi"stcd   of  mere   ex-  Iredell,  32;  Farrar  v.  Alston,  1  Dev. 

pressions  of  opinion,  upon   whicli  he  69. 


CJI.  III.]  DEFENCES.  271 

On  the  same  ground,  and  also  because  the  law  especially 
protects  those  who  cannot  protect  thennselves,  all  transac- 
tions with  feeble  persons,  whether  they  are  so  from  age, 
sickness,  or  infirmity  of  mind,  are  carefully  watched.  The 
whole  law  of  infancy  illustrates  this  principle;  and  applies  it 
in  many  cases  by  avoiding  on  this  account  transactions  as 
fraudulent,  which  would  not  have  been  so  characterized  had 
both  parties  been  equally  competent  to  take  care  of  them- 
selves, (c) 

We  have  seen  that  the  intention  is  sometimes  the  test  of 
fraud  ;  but,  on  the  other  hand,  this  intention  is  sometimes 
implied  by  the  law;  for  it  seems  now  to  be  quite  settled,  that 
if  one  injures  another  by  statements  which  he  knows  to  be 
false,  he  shall  be  held  answerable,  although  there  be  no  evi- 
dence of  gain  to  himself,  or  of  any  interest  in  the  question, 
or  of  malice  or  intended  mischief,  (a)  And  on  the  other 
hand,  if  the  statement  be  false  in  fact,  and  injurious  because 
false,  if  it  were  believed  to  be  true  by  the  party  making  it, 
it  is  not  a  fraud  on  his  part,  (b)     If  the  statement  be  in  fact 


(c)  Malin  v.  Malin,  2  Johns.  Ch.  238  ;  382.   Young  v.  Hall,  4  Geo.   95,  is  a 

Blaohford  v.  Christian,  1  Knapp,  77.  strong  case  to  show  that  the  defendant 

(«)  Foster  y.  Charles,  6  Bing.  396,  7  need  not   intend  to  derive  any  benefit 

Bhig.   105.    This   was   an   action    for  from  his  fraud  in  order  to  render  him 

making  false  statements  concerning  an  liable.     See    Stiles  v.  White,    11  Met. 

agent  whom  the  defendant  recommend-  356  ;  Weatherford  v.  Fishback,  3  Scam, 

ed,  and  knew  his  statements  to  be  false.  170.     In  Watson  v.  Poulson,  7   Eng. 

Tiiulal,    C.  J.,    said-  — "It    has    been  Law  &  Eq.   585,  it  was  AeW,  that  if  a 

urged  that  it  is  not  sufficient  to  show  man  tells  an  untruth,  knowing  it  to  be 

that    a    representation     on    which    a  such,  in  order  to  induce  another  to  alter 

plaintiff"  has  acted  was  false  within  the  his   condition,    who    does    accordingly 

knowledge  of  the  defendant,  and  that  alter  it,  and  thereby  sustains  damage, 

damage  has  ensued  to  the  plaintiff",  but  the  party  making  the  false  statement  is 

that  the  plaintiff"  must   also   show  the  liable  in  an  action  for  deceit,  although 

motive  which  actuated  the   defendant,  in  making  the  false  representationno 

I  am  not  aware   of  any  authority  for  fraud  or  injury  was  intended  by  him. 

such  a  position,  nor  that  it  can  be  ma-  Murray  v.  Mann,  2  Exch.  538,  is  to  the 

tcrial  what  the  motive  was.    The  law  same  eff'ect. 

will  infer  an  improper  motive  if  what        (b)  Collins  v.  Evans,  5  Q.  B.  820 ; 

the  defendant  says  is  f\ilse  within  his  Ilaycraft  v.  Creasy,  2  East,  92  ;  Eaw- 

own  knowledge,  and  is  the  occasion  of  lings  t\  Bell,   1    C.  B.  951  ;  Thorn  v. 

damage  to  the  plaintiff"."    See  also  Cor-  Bigland,  20  Eng.  Law  &  Eq.  470  ;  Orm- 

bett  r.  Brown,  8  Bing.  33,  1  Moore  &  rod  v.  Huth,  14  M;  &  AV.  651.     In 

Scott,  85,  that  if  a  representation  is  false  this  last  case,  cotton  was  sold  by  sam- 

within  the  defendant's  own  knowledge,  pie,  upon  a  representation  that  the  bulk 

fraud  is  to  be  inferred.     And  see  Pol-  corresponded  with  the  samples,  but  no 

hill  u.  Walter,  3  B.  &  Ad.  114,  as  ex-  warranty  was  taken  by  the  purchaser, 

plained  in  Freeman  v.  Baker,  5  B.  &  and  the  bulk  of  the  cotton  turned  out 

Ad.  797 ;  Hart  v.  Tallmadge,  2  Day,  to  be  of  inferior  quality,  and  to  have 


272 


TUE   LAW    OF    CONTRACTS. 


[part  ir. 


false,  and  be  uttered  for  a  fraudulent  purpose,  which  is  in 
fact  accomplished,  it  has  the  whole  effect  of  fraud  in  annul- 
ling the  contract,  although  the  person  uttering  the  statement 
did  not  know  it  to  be  false,  but  believed  it  to  be  true,  (c)  If 
the  falsehood  be  known  to  the  party  making  the  statement, 
malice  or  self-interest  will  be  inferred,  (d)  A  party  will  not 
be  held  liable  as  for  fraud,  if  the  statement  be  of  a  matter 
collateral  to  the  contract,  unless  it  is  proved  to   have  been 


been  falsely  packed,  though  not  by  the 
seller.  Hi  Id,  that  an  action  on  tlie  case 
for  a  false  and  fraudulent  representa- 
tion was  not  maintainable,  without 
showing  that  such  representation  was 
false  to  the  knowledge  of  the  seller,  or 
that  lie  acted  fraudulently  or  against 
good  faitli  in  making  it.  And  Thidal, 
C.  J.,  in  delivering  the  judgment  of  the 
Court  of  Exchequer  Chamber,  said:  — 
•'  The  rule  which  is  to  be  derived  from 
all  the  cases  appears  to  us  to  be,  that 
where,  upon  the  sale  of  goods,  tlie  pur- 
chaser is  satisfied  without  requiring  a 
warranty,  (which  is  a  matter  for  his 
own  consideration,)  he  cannot  recover 
upon  a  mere  representation  of  the  qua- 
lity by  the  seller,  unless  he  can  show 
that  the  representation  was  bottomed  in 
fraud.  If,  indeed,  the  representation 
was  false  to  tlie  knowledge  of  the  party 
making  it,  this  would  in  general  be  con- 
clusive evidence  of  fraud  ;  but  if  the 
representation  was  honestly  made,  and 
believed  at  tlic  time  to  be  true  by  the 
party  making  it,  tliough  not  true  in 
point  of  fact,  we  think  this  does  not 
amount  to  fraud  in  law,  but  that  the 
rule  of  caveat  emptor  applies,  and  the 
representation  itself  docs  not  furnish  a 
ground  of  action.  And  altliough  the 
cases  may  in  appearance  raise  some  dif- 
ference as  to  tlie  effect  of  a  false  asser- 
tion or  representation  of  tide  in  the 
seller,  it  will  be  found,  on  examination, 
that  in  each  of  those  cases  there  was 
either  an  assertion  of  title  embodied  in 
the  contract,  or  a  representation  of  title 
which  was  false  to  the  knowledge  of  the 
seller.  The  rule  we  liave  drawn  from 
the  cases  appears  to  us  to  be  supported 
so  clearly  by  the  early,  as  well  as  the 
more  recent  decisions,  that  we  think  it 
unnecessary  to  bring  them  forward  in 
review ;  but  to  satisfy  ourselves  with 
saying  that  the  exception  must  be  dis- 
allowed, and  the  judgment  of  tlie  Court 
of  Exchequer  aflirmed."  Sec  also  Tryon 


I'.  Whitmarsh,  1  Met.  1 ;  Stone  v.  Denny, 
4  Met.  151  ;  Russell  v.  Clark,  7  Cranch, 
69  ;  Young  v.  Covell,  8  Johns.  25 ; 
Hopper  V.  Sisk,  1  Smith,  [Ind.]  102,  1 
Carter,  17G  ;  Fooks  v.  Waples,  1  Har- 
ring.  131  ;  Boyd  i'.  Browne,  G  Barr, 
316;  Lord  v.  Goddard,  13  IIow.  198; 
Weeks  V.  Burton,  7  Verm.  67  ;  Ashlin 
V.  White,  1  Holt,  387  ;  Shrewsbury 
V.  Blount,  2  Mann.  &  Gr.  475.  Ma- 
ny cases,  however,  seem  to  hold  that 
a  false  statement  of  a  material  fact, 
though  made  bojid  fide,  will  avoid 
a  contract,  and  especially  if  the  state- 
ment be  of  a  fact  which  tlie  defend- 
ant ought  to  know,  and  which  the  other 
party  had  a  right  to  expect  the  defend- 
ant did  know.  See  Buford  v.  Cald- 
well, 3  Missouri,  477  ;  Snyder  v.  Find- 
ley,  Coxe,  48 ;  Thomas  v.  MeCann,  4 
B.  Monr.  GOl  ;  Lockridge  i;.  Foster,  4 
Scammon,  570 ;  Parham  v.  Randolph, 
4  How.  [Miss.]  435 ;  Dunbar  v.  Bone- 
steel,  3  Scam.  32  ;  Miller  v.  Howell,  I 
Id.  499  ;  Craig  v.  Blow,  3  Stew.  448  ; 
Van  Arsdale  v.  Howard,  5  Ala.  596 ; 
Munroe  v.  Pritchett,  16  Ala.  785  ;  Ju- 
zan  V.  Toulmin,  9  Ala.  662. 

(c)  Tavlor  v.  Ashton,  1 1  M.  &  W. 
401. 

(d.)  Thus,  in  Collins  v.  Denison,  12 
Met.  549,  it  M'as  held,  that  in  an  action 
for  deceit  in  the  sale  of  a  horse,  when 
proof  is  given  that  the  defendant  know- 
ingly made  false  representations  to  the 
plaintiff  concerning  the  horse,  at  the 
time  of  the  sale,  and  that  the  plaintifl" 
was  induced  by  those  rc])reseiitaiions  to 
buy  the  iiorse,  and  confiding  in  them 
did  buy  him,  the  jury  are  authorized 
and  required  to  find  (hat  the  defendant 
made  the  representations  with  the  intent 
thereby  to  induce  the  plaintiff  to  buy 
the  horse;  and  tlie  plaintiff  cannot  le- 
gally be  reipiircd  to  give  any  further 
proof  of  such  intent  of  the  defendant. 
See  Barley  r.  Walford,  9  Q.  B.  197  ; 
Boyd  V.  Browne.  6  Barr.  310. 


CH.  III.] 


DEFENCES. 


273 


made  fraudulently,  {e)  If  a  misrepresentation  be  embodied 
in  a  contract,  it  would,  for  obvious  reasons,  be  deemed  more 
important,  and  exert  a  greater  influence,  than  if  it  lie  without 
the  contract,  and  be  connected  with  it  only  collaterally,  and 
by  force  of  circumstances.  On  a  ground  somewhat  similar, 
a  distinction  has  been  drawn  between  extrinsic  and  intrinsic 
circumstances,  which  may  sometimes  be  of  practical  use. 
The  rule  seems  to  be,  that  a  concealment  or  misrepresenta- 
tion as  to  extrinsic  facts,  which  by  affecting  the  market  value 
of  things  sold,  or  in  any  such  way  affects  the  contract,  are 
not  fraudulent,  while  the  same  concealment  of  defects  in  the 
articles  themselves  would  be  fraudulent.  (/)  But  it  is  per- 
haps enough  to  say  of  this,  that  a  fraud  relating  to  external 
and  collateral  matters  is  treated  by  the  law  with  less  severity 
than  one  which  refers  to  things  internal  and  essential, 
/"in  general,  concealment  is  not  in  law  so  great  an  offence 
as  misrepresentation,  (g-)   whatever  it  may  be  morally.     It 


{e)  See  antp.,  p.  267,  n.  (n). 

(f)  Laiilliuv  V.  Orijaii,  2  Wlicaton, 
195.  holils  that  a  vendee  is  not  bound 
to  give  infornintion  of  extrinsic  i-ireum- 
stances,  which  might  influence  the  price 
of  the  article,  although  he  knows  the 
same  to  be  exclusively  within  his  own 
knowledge-  See  ante,  vol.  1,  p.  461,  n. 
(/).  See  also  Blydenburgh  v  Welsh, 
1  Baldw.  331  ;  Barnett  v.  Stanton,  2 
Ala.  181.  But  see  Frazer  r.  Gervais,  1 
Walker,  [Miss  ]  72.  See  also  Hough 
V.  Evans,  4  McCord,  169,  as  to  the  duty 
of  the  vendor  to  disclose  a  latent  defect, 
not  known  to  tiie  buyer.  But  this  may 
arise  from  the  law  peculiar  to  th..t 
State,  that  a  sound  price  implies  a 
sound  article. 

((/)  Concealment,  to  be  actionable, 
must  of  course  be  of  such  facts  as  the 
party  is  bound  to  communicate.  Irvine 
V.  Kirkpatrick,  3  Eng.  Law  &  Eq.  17. 
And  see  Otis  ?-•.  Raymond,  3  Conn.  413; 
Van  Arsdale  v.  Howard,  .5  Ala  596 ; 
Eichelberger  v.  Barnitz,  1  Yeaies,  307. 
A  purchaser  is  not  bound  to  disclose 
his  knowledge  of  a  fraud  which  makes 
the  title  of  the  vendor  to  the  property 
better  than  he  himself  .supposes,  where 
the  means  of  knowledge  are  equally 
open  to  both.  Kintzing  v.  McElrath, 
5  Tenn.  St.  467.  But  see  Stevens  v. 
Tuller,   8   N.   H.   463.     In   Kailton  r. 


Mathews,  10  CI.  &  Fin.  934.  a  party  be- 
came surety  in  a  bond  for  the  fidelity  of 
a  comtnission  agent  to  his  employers. 
After  some  time  the  employers  disco- 
vered irregularities  in  the  agent's  ac- 
counts, and  put  the  bond  in  suit.  The 
surety  then  instituted  a  suit  to  avoid 
the  bond,  on  the  ground  of  concealment 
by  the  employers  of  material  circijm- 
stances  affecting  the  agent's  credit  prior 
to  the  date  of  the  bond,  and  which,  if 
communicated  to  the  surety,  would 
have  prevented  hiu)  from  undertaking 
the  obligation.  On  the  trial  of  an  issue 
whether  the  surety  was  indi\ced  to  sign 
the  bond  by  undue  concealment  or  de- 
ception on  the  pan  of  the  employers, 
the  presiding  judge  directed  the  jury 
that  the  concealinent,  to  be  undue,  must 
be  wilful  and  intentional,  with  a  view 
to  the  advantages  the  employers  were 
thereby  to  gain.  UM  by  the  Lords, 
(reversing  the  judgment  of  the  Court 
of  Session)  that  the  direction  was 
wrong  in  point  of  law.  Merc  non-com- 
munication of  circumstances  affecting 
the  situation  of  the  parties,  material  for 
the  surety  to  be  acquainted  with,  and 
within  the  knowledge  of  the  person  ob- 
taining a  surety  bond,  is  undue  conceal- 
ment, though  not  wilful  or  intentional, 
or  with  a  view  to  any  advantai^e  to  him- 
self.   See  Prentiss  v.  Euss,  16  Maine,  30. 


274 


THE  LAW   OF   CONTRACTS. 


PART  II. 


is  certain,  however,  that  the  doctrine  of  fraud  extends  to  the 
suppression  of  the  truth  in  many  cases,  as  well  as  to  the  ex- 
pression of  what  is  false.  For  although  one  may  have  a 
right  to  be  silent  under  ordinary  circumstances,  there  are 
many  cases  in  which  the  very  propositions  of  a  party  imply 
that  certain  things,  if  not  told,  do  not  exist.  (Ii)  This  is 
peculiarly  the  case  in  contracts  of  insurance  ;  where  the  in- 
sured is  bound  to  state  all  facts  within  his  knowledge  which 
would  have  an  influence  upon  the  terms  of  the  contract,  and 
are  not  known,  or  may  be  supposed  by  him  not  to  be  known, 
to  the  insurer,  (i)  In  these  cases,  and  in  others  which  come 
within  this  principle,  the  suppressio  veri  has  the  same  effect 
in  law  as  the  expressio  falsi.  ^ 

The  next  rule  of  which  we  would  speak   is  one  which  is 
frequently  of  very  difficult  application.     It  is  the  rule  which 


If  a  broker  sell  property  to  a  per- 
son, knowing  it  to  be  subject  to  the  lien 
of  a  jieri  facias,  and  conceal  the  fact, 
and  send  the  party  to  investigate  re- 
specting tlie  encumbrances  on  the  pro- 
perty in  a  direction  wiicnce  he  knows 
correct  information  cannot  be  obtained, 
although  his  false  and  fraudulent  repre- 
sentations are  made  by  actions  rather 
than  words,  he  is  liable  to  an  action  on 
the  case  for  deceit.  Cliisolm  v.  Gads- 
den, 1  Strohh.  220.  But  where  the  de- 
fendant, in  an  action  for  deceit  in  the 
sale  of  a  slave,  had  been  told  that  he 
was  unsound,  but  did  not  believe  it,  it 
was  held  ih-.it  he  was  not  bound  to  dis- 
close it.  llamrick  r.  Hogg,  1  Dev.  351. 
As  to  evidence  of  fraudulent  conceal- 
ment, sec  Fleming  v.  Slocum,  18  Johns. 
403.  In  George  v.  Johnson,  6  Humph. 
36,  it  was  held,  that  wiiere  a  party,  dur- 
ing a  negotiation  for  the  sale  of  pro- 
perty, stated  that  the  other  contracting 
party  must  take  the  property  at  his  own 
risk,  such  statement,  though  negativing 
a  warranty,  would  not  exonerate  the 
party  from  a  liability  for  a  suppression 
of  the  truth,  or  the  suggestion  of  false- 
hood. 

(h)  Kidney  u.  Stoddard,  7  Met.  252, 
furnishes  an  excellent  illustration  of 
such  a  conceal ine7tt  as  is  actionable. 
There  a  father  by  letter  recommended 
his  minor  son  as  worthy  of  credit,  &c. 
He  did  not  not  state  that  he  was  a  mi- 


nor. A.  saw  the  letter,  and  on  tho 
strength  of  it  trusted  the  minor  for 
goods  for  trade  to  a  large  amount.  The 
jury  were  told  that  if  the  father  concealed 
thc'j'act  of  the  minority^  of  the  son,  with  the 
vieiv  of  (/iving  him  a  credit,  knoicing  or 
believing  that  \i  that  fad  had  been  staled, 
he  would  not  have  obtained  the  credit, 
he  was  liable  in  law  for  the  damage  A. 
sustained,  and  this  ruling  was  aftirmcd 
by  the  whole  Court.  And  see  Jackson 
v'.  Wilcox,  1  Scam.  344.  So  where  it 
was  agreed  between  the  vendors  and 
vendee  of  goods  that  the  latter  should 
pay  lOs.  per  ton  beyond  the  market 
price,  which  sum  was  to  be  applied  in 
liquidation  of  an  old  debt  due  to  one  of 
the  vendors;  and  the  payment  of  the 
goods  was  guaranteed  by  a  third  per- 
son, but  the  bargain  between  the  parties 
was  not  communicated  to  the  surety  ;  it 
was  held  that  that  was  a  fraud  on  the 
suretv,  and  rendered  the  guaranty  void. 
I'idcock  V.  Bishop,  3  B.  &  Cr.  605. 

(/)  Lindenau  i'.  Desborough,  8  B.  & 
C.  586;  Bufe  v.  Turner,  6  Taunt.  338; 
an  excellent  casfe  on  the  subject  of  con- 
cealment. See  farther,  Clark  v.  Man. 
Ins.  Co.  8  How.  235  ;  FIcK  her  v. 
Commonwealth  Ins.  Co  18  Tick.  419; 
Walden  r.  Louisiana  Ins.  Co.  12  Louis. 
134;  Lyon  v.  Commercial  Ins.  Co.  2 
Kob.  [Louis.]  266  ;  New  York  Bowery 
Ins.  Co.  V.  Is'ew  York  Ins.  Co.  17  Wend. 
359. 


CH.  III.]  DEFENCES.  275 

discriminates  between  the  mere  expression  of  opinion  and 
the  statement  of  a  fact,  (j)  This  is  often  a  question  for  the 
jury  ;  but,  so  far  as  it  is  matter  of  law,  it  may  be  said  that  a 
false  representation,  in  order  to  have  the  full  efFcct  of  fraud, 
must  relate  to  a  substantial  matter  of  fact,  and  not  merely 
to  a  matter  which  rests  in  opinion,  or  estimate,  or  judg- 
ment. (A:)  One  reason  is,  the  difficulty  of  proving  that  a 
mere  statement  of  opinion  is  false,  for  no  one  can  know 
what  another  thinks,  with  any  certainty,  unless  the  opinion 
is  of  some  tangible  matter  of  fact  plainly  before  one's  eyes, 
and  then  it  would  generally  be  a  falsehood  as  to  fact.  An- 
other reason  is,  that  if  one  person  has  an  opinion,  so  may 
another ;  and  if  any  one  relies  on  mere  opinion,  instead  of 
ascertaining  facts,  it  is  his  own  folly.  But  this  rule  must 
not  be  pressed  beyond  its  reason.  For  though  the  statement  be 
in  form  only  of  an  opinion  ;  yet  if  that  opinion  was  one  on 
which  the  other  party  was  justified  in  relying,  either  by  the 
relations  existing  between  the  parties,  (I)  or  by  the  nature 
of  the  case,  and  it  can  be  made  to  appear  that  the  opinion 
expressed  was  not  in  fact  held,  it  is  not  easy  to  see  why  this 
should  not  be  regarded  as  a  false  statement  of  a  fact,  or  rather 
why  it  is  not,  strictly  speaking,  a  false  statement  of  a  fact. 

{j)  Where  a  person,  having  land  for  contracting  party  to  the  other  as  to  the 
sale,  gave  an  authority  in  writing  to  sell  value  or  quantity  of  a  commodity  in 
it  upon  certain  terras,  containing  the  market,  where  correct  information  on 
following  clause  :  —  '=1  will  guaranty  the  subject  is  equally  within  the  power 
that  there  is  45,000,000  feet,  board  mea-  of  both  parties,  with  equal  diligence,  do 
sure,  of  pine  timber  on  the  township  ;  not,  in  contemplation  of  law,  constitute 
and  the  purchaser  may  elect,  within  fraud.  Foley  v.  Cowgill,  5  Blackf  18. 
thirty  days  of  the  purchase,  to  take  it  And  the  same  principle  was  applied  in 
at  a  survey  of  all  the  standing  pine  Baily  v.  Merrell,  3  Bulstr.  94,  where  a 
timber  at  one  dollar  per  thousand,  or  carrier  brought  an  action  of  deceit  for  re- 
pay the  said  $45,000  ;"  it  was  held  that  presenting  that  a  load  was  only  8  cwt., 
this  did  not  amount  to  a  representation  when  it  was  20  cwt.,  whereby  two  of 
that  there  were  in  fact  forty-five  mil-  his  horses  were  killed.  Judgment  was 
lions  of  feet  of  timber  on  the  land,  arrested,  because  the  carrier  might  have 
Hammatt  v.  Emerson,  27  Maine,  308.  weighed  the  load  himself.  —  But  false 
So  in  Sandford  v.  Handy,  23  Wend,  representations  by  a  vendor  of  real 
260,  it  was  held  that  a  vendor  of  land  estate  as  to  its  income  or  profits  will 
is  not  liable  for  an  expression  of  opi-  invalidate  the  sale.  Irving  v.  Thomas, 
nion  of  its  value;  but  he  is  for  a  false  18  Maine,  418;  Hutchinson  v.  Morley, 
representation  as  to  its  location,  if  the  7  Scott,  341.  And  sec  Maddeford  v. 
purchaser  have  not  an  opportunity  at  Austwick,  1  Sim.  89 ;  Wilson  v.  Wil- 
the  time  of  seeing  the  land.  So  also  son,  6  Scott,  540 ;  Dobell  v.  Stevens,  3 
he  is  liable  for  a  misrepresentation  as  B.  &  C.  623. 
to  the  cost  of  the  land.  (/)  Sec  Shaeffer  v.  Sleade,  7  Blackf. 

(k)  Thus,  misrepresentations  by  one  178. 


THE    LAW   OF   CONTRACTS. 


[part  II. 


276 
/ 

/  The  misrepresentation  need  not  be  made  by  tlie  party 
whom  it  benefits,  in  order  to  constitute  a  fraud  as  against 
him.  (;;j)  It  may  be  his  by  adoption  ;  as  if  a  seller  knew 
that  a  false  statement  had  been  made  by  a  third  party,  which 
was  known  to  the  buyer,  and  was  operating  upon  his  mind, 
and  inducing  him  to  complete  the  purchase  ;  {?i)  if  the  seller 


(m)  And  it  is  for  this  reason  that  if 
A-  trusts  B.  upon  the  fraudulent  recom- 
mendation of  C,  A.  is  not  left  to  his 
action  for  damages  against  C.  for  the 
deceit,  but  the  fraud  of  C.  invalidates 
the  contract  between  A.  &  B.,  and  gives 
A.  the  same  right  to  retake  the  goods 
as  if  the  fraud  had  proceeded  directly 
from  B.  himself.  Fitzsimmons  v.  Jos- 
lyn,  21  Vermont,  129,  is  a  very  interest- 
ing and  valuable  case  upon  this  point. 
In  that  case  the  creditors  of  a  trader, 
■who  was  insolvent,  but  who  wished  to 
purchase  goods,  being  unwilling  to  ex- 
tend to  him  further  credit,  told  him  that 
they  did  not  like  to  sell  to  him  if  he 
could  buy  elsewhere,  and  gave  him  the 
name  of  another  merchant,  and  author- 
ized him  to  refer  to  them.  He  attempted 
to  purchase  of  this  merchant,  and,  being 
asked  for  references,  gave  the  names  of 
his  original  creditors,  and  was  told  to 
call  again  in  half  an  hour.  He  did  call 
again  in  the  course  of  the  day,  and  the 
purchase  was  effected.  No  inquiry  was 
made  by  the  vendor  of  the  purchaser, 
as  to  his  circumstances,  nor  did  he  give 
any  assurances  whatever  relative  there- 
to. On  the  same  day,  and  after  the 
purchase  was  effected,  the  purchaser 
met  one  of  his  original  creditors,  who 
told  him  that  he  had  been  called  upon 
by  the  vendor,  and  that  "  he  had  given 
as  good  an  account  of  him  as  he  could 
and  not  make  himself  liable,"  —  "that 
he  had  told  him  that  he,  the  purchaser, 
was  a  clever  fellow,  and  was  doing  a 
thriving  business  in  Vergenncs,  and 
that  he,  the  creditor,  liad  sold  him 
goods,  and  he  paid  well,  and  he  was 
ready  to  sell  him  more."  At  the  time 
of  this  transaction,  the  purchaser  was  in 
arrears  to  these  same  original  creditors, 
to  the  amount  of  several  hundred  dol- 
lars each,  and  their  demands  had  actual- 
ly been  placed  in  the  hands  of  their 
attorney  at  Vergenncs,  where  the  pur- 
chaser resided,  for  collection ;  and,  as 
soon  as  they  learned  that  this  last  pur- 
chase had  been  effected,  they  sent  in- 
structions to  the  attorney  to  attach  the 


goods,  as  the  property  of  the  purchaser, 
upon  their  arrival  at  the  place  of  desti- 
nation. This  was  done,  and,  as  soon 
as  the  vendor  was  informed  of  the  in- 
solvency of  the  purchaser,  which  was 
within  a  week  after  the  attachment,  he 
demanded  the  goods  of  the  sheriff, 
offering  to  pay  freight ;  but  the  sheriff 
refused  to  surrender  them.  The  attach- 
ment was  made  upon  suits  in  favor  of 
the  several  original  creditors ;  and  it 
did  not  appear  that  either  of  these  cre- 
ditors, except  the  one  above-mentioned, 
had  made  any  representation  whatever 
in  relation  to  the  matter.  And  it  was 
held,  that  the  purchaser  was  responsible 
for  the  representations  made  by  his  cre- 
ditor, and  that  the  vendor,  having  been 
cheated  and  deceived  by  means  for 
which  the  purchaser  was  legally  respon- 
sible, might  sustain  trover  against  the 
sheriff  to  recover  the  value  of  the  goods 
so  attached. 

(?i)  Crocker  v.  Lewis,  3  Sumner,  8. 
In  this  case  it  was  held  that  a  represen- 
tation made  by  A.  to  B.,  and  communi- 
cated by  B.  to  C,  who,  relying  there- 
upon, contracts  with  A.,  by  which  he  is 
defrauded,  shall  have  the  same  effect  to 
avoid  the  contract  as  if  made  directly 
by  A.  to  C.  See  also  Bowers  v.  John- 
son, 10  Sm.  &  M.  169  ;  Hunt  v.  Moore, 
2  Barr,  105.  So  fraudulent  representa- 
tions by  A.  to  B.  concerning  another's 
credit  or  solvency,  if  communicated  to 
C,  who,  relying  upon  them,  trusts  such 
third  person,  may  give  C.  a  right  of 
action  against  A.  as  much  as  if  the  com- 
munication had  been  addressed  to  C.  in 
person.  For  the  foundation  of  such  an 
action  is  not  privity  of  contract,  but  the 
author  of  the  fraudulent  misrepresenta- 
tions is  guilty  of  a  tort,  and  is  answer- 
able for  the  damage  suffered  by  any  one 
from  such  tortious  contract.  Gerhard 
I'.  Bates,  20  Eng.  Law  &  Eq.  R.  129; 
Pilmore  v.  Hood,  5  Bing.  N.  C.  97.  In 
this  last  case,  tlic  defendant  being  about 
to  sell  a  public  house,  falsely  represented 
to  B.,  who  hada  greed  to  iiurchase  it, 
that  the  receipts  were  X180a  month; 


CH.   III.] 


DEFENCES. 


277 


only  permits  the  buyer  to  act  under  this  delusion,  he  makes' 
the  falsehood  his  own,  and  it  is  his  fraud,  (o)  And  it  is 
hardly  necessary  to  repeat,  what  may  be  inferred  from  the 
general  principles  of  agency,  that  a  principal  may  commit  a 
fraud  by  an  agent ;  or  may  even  be  affected  by  the  fraud  of 
his  agent,  although  personally  honest.  (/?) 
Z'  We  have  already  seen  that,  generally,  wherever  one  has  a 
right  to  rescind  a  contract,  and  exercises  that  right,  he  must 
restore  the  other  party  to  the  same  condition  that  he  would 
have  been  in  if  the  contract  had  not  been  made,  (q)  But 
where  the  right  to  rescind  springs  from  discovered  fraud, 
there  is  an  exception  to  the  rule  ;  the  defrauded  party  does 
not  lose  his  right  to  rescind  because  the  contract  has  been 
partly  executed,  and  the  parties  cannot  be  fully  restored  to 
their  former  position  ;  (r)  but  he  must  rescind  as  soon  as  cir- 


B,  having,  to  the  knowledge  of  defend- 
ant, communicated  this  representation 
to  plaintiff,  who  became  the  purchaser 
instead  of  B.,  held,  that  an  action  lay 
against  defendant  at  the  suit  of  plain- 
tiff. See  also  Wcatherford  v.  Fishback, 
3  Scam.  170.  But  in  M'Cracken  v. 
"West,  17  Ohio,  IG,  it  was  held  that  if 
A.  write  a  letter  to  B.,  desiring  him  to 
introduce  the  bearer  to  such  merchants 
as  he  may  desire,  and  describing  him 
as  a  man  of  property,  and  the  bearer  do 
not  deliver  the  letter  to  B.,  but  use  it 
to  obtain  credit  with  C,  C.  cannot 
maintain  an  action  for  deceit  against 
A.,  though  the  representations  in  the 
letter  are  untrue. 

(o)  See  Warner  v.  Daniels,  1  Wood. 
&  Min.  90  ;  Hams  v.  Delamar,  3 
Ired.  Eq.  219  ;  Bowers  v.  Johnson,  10 
S.  &  M.  173;  Lawrence  v.  Hand,  23 
Mississippi,  105. 

(p)  Fitzsimmons  v.  Joslyn,  21  Verm. 
129.  In  this  case,  Redjield,  J.,  ably  re- 
views the  decided  cases,  and  pointedly 
condemns  the  cases  of  Cornfoot  v. 
Fowkc,  6  M.  &  W.  358  ;  and  Langridge 
V.  Levy,  2  M.  &  W.  519,  4  Id.  336,  as 
unsound.  See  also  Fuller  v.  Wilson,  3 
Q.  B.  58;  And  see  ante,  vol.  1,  pp.  62, 
63,  and  notes. 

(7)  Burton  v.  Stewart,  3  Wend.  236  ; 
Thayer  v.  Turner,  8  Met.  550 ;  Kimball 
V.  Cunningham,  4  Mass.  502  ;  Pcrley  v. 
Balch,  23  Pick.  283.  See  also  ante,  p. 
192,  n.  (0).  But  in  Stevens  v.  Austin, 
1  JVIet.  557,  where  B.  received  the  pro- 
VOL.    II.  24 


missory  note,  &c.,  of  A.  for  goods  which 
A.  fraudulently  obtained  of  him  and 
sold  to  C,  who  had  knowledge  of  the 
fraud  ;  it  was  held  that  B.  might  main- 
tain an  action  of  trover  for  the  goods 
against  C.  without  restoring  the  note  to 
A.  And  Shaw,  C.  J.,  said :  —  "  The 
question  is  whether  the  plaintiff  was 
Ijound  to  tender  back  the  note  and  mo- 
ney he  had  received  before  he  could 
bring  his  action.  We  think  he  was 
not.  Not  to  the  defendant ;  for  the 
plaintiff  had  received  nothing  of  him. 
Nor  could  the  defendant  raise  the  ques- 
tion, whether  the  plaintiff  had  made 
restoration  to  Foster  or  not.  It  was 
res  inter  alios,  with  which  the  plaintiff 
had  no  concern,  and  was  wholly  irrela- 
tive to  the  issue  between  the  parties." 
Generally  an  offer  to  return  the  pro- 
perty received  is  as  effectual  as  actually 
returning  it.  See  Howard  v.  Cadwa- 
lader,  5  Blackf  225  ;  Newell  v.  Turner, 
9  Porter,  420.  Barnett  v.  Stanton,  2 
Ala.  181.  But  see  Carter  v.  Walker, 
2  Ilich.  40.  In  Bacon  v.  Brown,  4 
Bibb,  91,  it  was  held  that,  in  an  action 
for  damages  for  deceit  in  a  sale  of  per- 
sonal property,  it  was  not  necessary  to 
return,  or  offer  to  return  the  property. 
Aliter,  if  the  buyer  disaffirms  the  con- 
tract, and  sues  for  the  price  paid. 

(r)  Thus,  where  a  vendor  received,  in 
part  payment  for  goods,  the  note  of  a 
third  person,  and  for  the  other  part  an 
order  from  the  vendee  on  another  jjer- 
son,  which  order  was  duly  paid,  it  was 


278 


THE   LAW   OF   CONTRACTS. 


[part  n. 


cumstances  permit,  and  must  not  go  on  with  the  contract 
after  the  discovery  of  the  fraud,  so  as  to  increase  the  injury 
necessarily  caused  to  the  fraudulent  party  by  the  rescis- 
sion, (s)  In  other  words,  if  he  rescinds  on  the  ground  of 
fraud,  he  must  do  so  at  once  on  discovering  the  fraud ;  (t)    / 


held  that  the  vendor  having  taken  the 
note  upon  the  false  and  fraudulent  re- 
presentations by  the  vendee  that  the 
maker  was  solvent,  might  return  the 
note  to  the  vendee,  and  maintain  as- 
sumpsit for  the  balance  of  the  amount 
of  the  goods  sold  above  the  order,  with- 
out returning  the  order  also,  and  that 
the  defendant  was  not  entitled  to  be 
placed  entirely  in  statu  quo.  Martin  v. 
Roberts,  5  Cush.  126.  Had  the  vendor 
sought  by  replevin  to  recover  all  the 
articles  sold,  in  specie,  perhaps  he  would 
have  been  obliged  to  return  all  the  con- 
sideration received.  In  Frost  v.  Lowry, 
15  Ohio,  200,  it  was  held,  that  if  A.  ob- 
tains goods  of  B.  by  false  pretences,  and 
gives  therefor  an  accepted  draft  upon 
C,  an  accommodation  acceptor,  it  is 
not  necessary  for  B.  to  return  the 
draft  to  A.,  in  order  to  rescind  the  sale, 
and  recover  back  the  goods.  And  so  if  a 
person  effect  a  compromise  of  his  debts, 
by  fraudulent  representations,  and  pro- 
cure a  discharge  of  the  same  by  paying 
a  percentage  thereon,  and  an  action  be 
brought  to  recover  the  balance,  on  the 
ground  of  fraud,  it  is  not  necessary,  as 
preliminary  to  the  right  of  recovery, 
that  the  plaintiff  repay  or  offer  to  repay 
the  percentage  received.  The  doctrine 
of  the  rescission  of  contracts  does  not 
apply  to  such  a  case.  Pierce  v.  Wood, 
3  Fost.  520. 

(s)  Thus,  in  Masson  v  Bovet,  1  Denio, 
69,  it  was  held  that  where  a  party  has 
been  led  to  enter  into  a  contract  by  the 
fraud  of  the  other  party,  he  may,  upon 
discovering  the  fraud,  rescind  tiie  con- 
tract, and  recover  whatever  he  has  ad- 
vanced upon  it,  provided  he  does  so  at 
the  earliest  moment  after  he  has  know- 
ledge of  the  fraud,  and  returns  what- 
ever he  has  himself  received  upon  it. 
In  that  case  the  defendant,  being  the 
plaintiff  in  a  judgment,  and  about  to 
cause  land  of  the  judgment  debtor  to  be 
sold  on  execution,  fraudulently  repre- 
sented to  the  plaintiff  that  the  land  to 
be  sold  was  free  from  any  prior  incum- 
brance, when  in  truth  it  was  suliject  to 
older  liens  to  more  than  its  value,  and 


thereby  induced  him  to  become  the 
purchaser  at  the  sheriff's  sale  for  a  con- 
siderable sum,  and  received  from  him 
in  payment  of  his  bid  tlie  note  of  a  third 
person  held  l)y  the  jjlaintiff  for  a  larger 
sum  than  the  amount  bid,  giving  back 
his  own  note  for  the  balance.  It  was 
held  that  the  plaintiff,  who  had  imme- 
diately upon  the  discovery  of  the  fraud, 
offered  to  give  up  the  note  received  by 
him,  and  to  assign  the  certificate  of 
sale,  could  maintain  replevin  in  the  de- 
tinet  against  defendant,  for  the  note  so 
transferred  to  the  defendant  by  him. 

(t)  Thus,  where  A.  engaged  to  carry 
away  certain  rubbish  for  B.  at  a  speci- 
Jied  sum,  but  found  upon  commencing 
his  work  that  B.  had  made  fraudulent 
representations  as  to  the  quantity  of  rub- 
bish, but  nevertheless  went  on  with  the 
work,  and  then  sought  to  recover  more 
than  the  sum  specified  by  the  contract, 
it  was  held  that  by  going  on  with  the 
work  he  had  waived  the  fraud,  and 
could  not  recover  except  upon  the  spe- 
cial contract.  Selway  v.  Fogg,  5  M.  & 
W.  S3.  Saratoga  K.  R.  v.  Row,  24 
Wend.  74,  is  very  analogous.  So  if  a 
party  defrauded  brings  an  action  on 
the  contract  to  enforce  it,  he  thereby 
waives  the  fraud  and  affirms  the  con- 
tract. Ferguson  v.  Carrington,  9  B.  &  C. 
59;  Kimball  u.  Cunningham,  4 ]Mass.  502. 
See  also  Whitney  v.  Allaire,  4  Denio, 
554 ;  Lloyd  v.  Brewster,  4  Paige,  Ch. 
R.  537.  So  if,  after  a  party  has  ac- 
quired a  knowledge  of  facts  tending  to 
affect  a  contract  with  fraud,  he  offers  to 
perform  it  on  a  condition  which  he  has 
no  right  to  exact,  he  thereby  waives  the 
fraud,  and  cannot  set  it  up  in  an  action 
on  tlie  contract.  Blydcnburgh  v.  Welsh, 
BaUhv.  331.  And  see  Lamerson  v. 
Marvin,  8  Barb.  10.  But  in  Adams  r. 
Shelby,  10  Ala.  478,  it  was  held  that 
when  a  party,  by  fraud,  obtains  posses- 
sion of  property,  under  a  contract  which 
lie  had  not  complied  with  on  his  part, 
an  otter  by  the  defrauded  jjarty  to  make 
a  new  contract,  which  is  not  acceded  to, 
is  not  a  waiver  of  any  riglit  he  had 
against  the  other  for  the  fraud  practised. 


en.  III.]  DEFENCES.  279 

for  he  is  not  bound  to  rescind,  and  any  delay,  especially  if  it 
be  injurious  to  the  other  party,  would  be  regarded  as  a 
waiver  of  his  right.  And  the  same  consequences  would  flow 
from  his  continuing  to  treat  as  his  own  the  property  which 
came  to  him  by  reason  of  the  fraud,  (m)  The  mere  lapse  of 
time,  if  it  be  considerable,  goes  far  to  establish  a  waiver  of 
this  right;  and  if  it  be  connected  with  an  obvious  ability  on 
the  part  of  the  defrauded  person  to  discover  the  fraud  at  a 
much  earlier  period,  by  the  exercise  of  ordinary  care  and 
intelligence,  it  would  be  almost  conclusive,  (v) 

The  fraudulent  party  cannot  himself  assert  his  fraud,  and 
claim  as  his  right  any  advantages  resulting  from  it.  To  per- 
mit him  to  do  so  would  be  to  contradict  the  plainest  prin- 
ciples of  law.  No  man  can  be  permitted  to  found  any 
rights  upon  his  own  wrong ;  {w)  and  it  would  seem  to  be  an 
inference  from  this,  that  if  both  parties  are  in  fault,  the  law 
will  not  interfere  between  them  ;  and  this  is  so,  if  both  par- 
ties are  actually  fraudulent,  although  the  beginning,  and  the 
greater  fraud,  may  be  on  the  one  side  or  the  other,  (x) 

The  general  rule,  that  equity  gives  relief  only  where  the 
law  cannot,  seems  not  applicable  to  cases  of  fraud  ;  for  there 
equity  and  law^  have,  in  some  cases  at  least,  a  concurrent  juris- 
diction. But  where  the  injured  party  confines  his  claim  to 
damages,  he  should  bring  his  action  at  law^.  If  he  seeks  to 
set  aside  the  contract  entirely  on  this  ground,  he  must 
either  wait  until  sued  upon  the  contract,  and  then  interpose 
this  defence  at  law,  or  by  his  bill  in  equity  seek  for  an  in- 
junction, or  other  proper  remedy.     There  is  one  distinction. 


(m)  Thus,  in  Campbell  v.  Fleming,  1  (w)  Jones  v.  Yates,  9  B.  &  C.  532, 
Ad.  &  El.  40,  it  was  held,  that  if  a  party  per  Lord  Tenterden  ;  Taylor  v.  Weld, 
be  induced  to  purchase  an  article  by  5  Mass.  116;  Ayers  v.  Hewett,  19 
fraudulent  representations  of  the  seller  Maine,  281  ;  Holiis  v.  Morris,  2  Harring. 
respecting  it,  and  after  discovering  the  128.  Therefore  one  who  gives  a  fraud- 
fraud  continue  to  deal  with  the  article  ulent  bill  of  sale  to  defraud  his  creditors 
as  his  own,  he  cannot  recover  back  the  cannot  set  it  aside.  Bossey  v.  Wind- 
money  from  the  seller.  And  sew6/ft  tliat  ham.  6  Q.  B.  166;  Nichols  v.  Patten, 
the  right  to  repudiate  the  contract  is  IS  Maine.  231. 
not  afterwards  revived  by  the  discovery 
of  another  incident  in  the  same  fraud.  (ar)  Warburton  v.  Aken,  1   McLean, 

(«)  See  Veazie  i\  Williams,  3  Story,  460;    Goudy  i;.    Gehiiart,    1    Ohio    St. 

612.      But   see   Attwood    v.   Small,  '6  262;   Nellis   v.   Clark,    20    Wend.  24; 

Clark  &   Fin.    234  ;    Irvine    v.   Kirk-  Smith  u.  Hubbs,  1  Fairf.  71. 
patrick,  3  Eng.  Law  &  Eq.  R.  17. 


280 


THE   LAW   OP   CONTRACTS. 


[part  II. 


however,  which  rests  upon  cases  of  authority,  but  is  in  its 
own  nature  so  far  technical  that  we  have  some  doubts  whe- 
ther it  would  now  be  generally  adopted.  It  is  this  ;  that 
while  in  a  suit  on  a  simple  contract,  fraud  is  a  good  and 
complete  defence,  it  is  not  pleadable  in  bar  to  an  action 
founded  upon  a  specialty.  Some  of  the  courts  which  have 
recognized,  and  perhaps  enforced  this  distinction,  have  doubt- 
ed its  reasonableness;  and  in  that  mingling  of  law  and 
equity  jurisdiction,  which  has  made  much  progress,  and 
threatens,  or  promises,  to  make  more,  we  think  this  distinc- 
tion will  disappear,  (i/) 


(y)  Any  such  distinction  is  denied  in 
Massachusetts.  See  Hazard  v.  Irwin, 
18  Pick.  95.  In  that  case  it  was  held 
that  in  an  action  on  a  contract  under 
seal,  in  which  one  of  the  contracting 
parties  is  seeking  to  enforce  the  con- 
tract against  the  other,  the  defendant 
may  plead  that  the  contract  was  ob- 
tained by  fraud  and  imposition.  And 
Shaw,  C.  J.,  in  delivering  the  judg- 
ment of  the  court,  said :  —  "It  was  ar- 
gued on  the  part  of  the  plaintiff,  that 
whatever  might  be  the  effect  of  the  al- 
leged fraud  in  defence  of  a  suit  on  a 
simple  contract,  such  a  fraud  is  not 
pleadable  in  bar  of  an  action  on  a  deed 
or  specialty.  Several  cases  are  cited  in 
support  of  this  position,  from  the  deci- 
sions of  the  courts  of  New  York,  and 
the  point  seems  to  be  there  so  settled  by 
a  series  of  cases.  It  is  a  little  remark- 
able, however,  that  the  original  case, 
■which  constitutes  the  commencement  of 
this  series,  is  hardly  an  authority  for 
tlie  point.  Dorian  v.  Sam  mis,  2  Johns. 
R.  179,  note.  The  case  was  debt  on 
bond,  for  the  price  of  a  slave;  the  de- 
fendant relied  on  the  fact  that  the  negro 
was  free,  and  not  the  property  of  the 
plaintiff,  when  he  sold  her ;  a  mere 
failure  of  consideration,  and  with  no 
averment  of  fraudulent  representation. 
The  court  ask,  '  can  a  defendant  in  a 
court  of  law  get  rid  of  a  bond,  given  on 
a  sale  of  a  chattel,  on  the  ground  of 
failure  of  consideration  ?  There  is  no 
allegation  that  the  plaintiff'  sold  the 
chattel  fraudulently  and  knowing  that 
he  had  no  title.  There  is  no  case  in 
which  a  bond  can  be  set  aside  but 
where  the  consideration  was  void  in 
law,  or  wlierc  there  was  fraud.'  But 
it  was  afterwards  ruled,  that  fraud  can- 


not be  pleaded  to  a  specialty  in  a  court 
of  law,  not  affecting  the  execution  of 
the  bond  itself;  but  these  decisions  are 
founded  mainly  on  the  consideration  that 
a  more  adequate  remedy,  and  one  bet- 
ter adapted  at  once  to  discover  the  fraud 
and  to  relieve  against  it,  is  afforded  in 
equity.  In  one  of  the  late  cases  on  the 
subject.  Chief  Justice  Savage  says :  — 
'  I  confess  I  can  see  no  very  good  rea- 
son why  this  defence  should  be  exclud- 
ed from  a  court  of  law,  and  the  party 
sent  into  a  court  of  equity ;  but  so  the 
point  has  always  been  decided.'  Ste- 
vens y.  Judson,  4  Wend.  473.  But  what- 
ever may  have  been  decided  elsewhere, 
we  think  it  has  long  been  a  settled  rule 
in  Massachusetts,  tliat  such  a  fraud  as 
that  set  fortli  in  this  case  is  a  good  de- 
fence as  well  to  an  action  founded  on  a 
deed  as  any  other  ;  it  is  ratlier  acted  on 
as  a  settled  rule,  than  discussed  and  de- 
cided in  any  particular  case.  The  cases 
cited  on  the  argument  are  cases  in 
Avhich  tlie  judgment  of  the  court,  upon 
great  consideration,  proceeded  upon 
tliis  as  a  settled  rule  of  law.  Bliss  v. 
Thomson,  4  Mass.  R.  492  ;  Somes  v. 
Skinner,  16  Mass.  II.  348;  Somes  v. 
Brewer,  2  Pick.  191.  The  second  of 
the  above  cases  was  a  real  action,  in- 
volving a  question  of  title,  and  the 
deed,  by  which  the  plaintiff'  conveyed 
to  the  defendant,  being  shown  to  have 
Iicen  obtained  by  imposition  and  fraud, 
it  was  held  that  no  title  passed.  The 
last  of  the  above  cases  assumed  the 
same  rule  to  be  a  settled  rule  of  law ; 
but  the  case  was  distinguishable  in  this, 
that  the  lirst  grantee,  who  obtained  the 
deed  from  the  plaintiff  l)y  fraud  and 
iinj)ositioii,  had  conveyed  the  land  to  a 
hondjlik  purchaser  without  notice,  and 


CII.   III.]  DEFENCES.  281 

It  is  said  that  the  law  never  presumes  fraud.  If  this  maxim 
is  regarded  merely  as  an  expression  of  the  horror  with  which 
the  law  regards  fraud,  and  its  unwillingness  to  suppose  that 
any  one  can  be  guilty  of  a  thing  so  base,  it  may  be  useful. 
And  if  it  means  no  more  than  that  the  law  never  presumes 
fraud  without  any  evidence,  as  it  will  sometimes  presume 
payment  or  title  from  lapse  of  time,  it  is  true.  But  this  lan- 
guage is  sometimes  used  when  nothing  more  is  meant  than 
that  it  will  not  too  readily  admit  fraud  upon  slight  evidence; 
and  when  it  might  be  taken  to  mean,  what  certainly  is  not 
true,  that  the  law  will  never  imply  fraud  where  it  is  not 
directly  proved,  or  will  not  call  and  treat  as  constructive 
fraud  that  which  is  not  proved  to  be  actual  fraud,  (s)  There 
is  such  a  phrase  in  use  as  legal  fraud  ;  meaning  not  fraud 
which  the  law  allows,  but  that  which  the  law  for  good  rea- 
sons calls  fraud,  although  neither  the  dictionary  nor  morality 
would  give  it  that  name.  The  doctrine  on  this  subject  is 
not  as  yet  fully  settled.  It  would  often  be  very  harsh,  and 
apparently  very  unjust,  to  inflict  all  the  consequences  of 
fraud  upon  one  who  had  made  a  material  misstatement 
himself,  only  because  of  his  own  error ;  but  it  would  seem  to 
be  still  more  unjust  to  permit  all  the  consequences  of  this 
false  statement  to  fall  and  rest  on  him  whose  only  fault  was 
in  believing  that  one  told  the  truth,  who  in  fact  was  telling 


so  it  was  held,  that  as  against  him  the  contract,  though  under  seal,  in  which  a 
rule  did  not  applj'.  Tlie  general  doc-  party  is  seeking  to  enforce  a  contract 
trine  was  also  settled  in  a  case  in  which  against  the  other  contracting  party,  a 
the  opinion  was  given  by  Parsons,  C.  J.  plea  and  proof  that  such  contract  was 
It  is  direttly  in  point.  It  was  on  cove-  obtained  by  fraud  and  imposition  would 
nant,  and  the  defendant  pleaded  that  it  constitute  a  good  defence  at  law,  and  of 
was  obtained  by  fraud  and  imposition,  course,  that  had  this  been  a  suit  against 
and  the  defence  was  held  good.  The  Penman,  he  might  have  made  this  de- 
question  as  to  the  relative  jurisdiction  fence  at  law."  To  the  same  eftcct  is 
of  courts  of  law  and  equity  is  there  con-  Hoitt  v.  Ilolcomb,  3  Foster,  535. 
sidered.  The  learned  judge  concludes  (=)  It  is  frequently  said  that  courts 
this  part  of  the  case  thus  :  — '  But  when  of  equity  can  act  more  upon  presump- 
a  court  of  law  has  regularly  the  fact  of  tive  evidence  of  fraud  than  courts  of 
fraud  admitted  or  proved,  no  good  rca-  law,  but  the  consideration  of  that  sub- 
son  can  be  assigned  why  relief  should  jcct  in  detail  is  foreign  to  the  object  of 
not  be  obtained  there,  although  not  al-  the  present  work.  See  Warner  v.  Da- 
ways  in  the  same  way  in  which  it  may  niels,  1  Wood.  &  Min.  90  ;  1  Story, 
be  obtained  in  equity.'  Boynton  v.  Eq.  Jur.  §  190:  Rosevelt  u.  Fulton,  2 
Hubbard,  7  Mass.  119.  The  court  are  Cowen,  129;  Neville  v.  Wilkinson,  I 
all  of  opinion,  that  in  an  action  on  a  Bro.  C.  C.  543. 

24* 


282  THE  LAW  OF  CONTRACTS.  [PART  II. 

that  which  was  false.  In  our  first  volume  we  have  consider- 
ed this  subject  somewhat  in  connection  with  the  law  of 
agency.  In  general,  we  should  say  that  where  one  states 
what  is  not  true,  and  injurious  consequences  result  to  an- 
other, the  municipal  law,  although  as  we  have  said,  not  iden- 
tical with  the  law  of  morality,  may  well  borrow  some  light 
from  it.  The  question  should  be  asked,  first,  whether  the 
statement  was  made  in  actual  ignorance,  and  then,  whether 
this  ignorance  was  innocent.  Nor  would  it  be  enough  to 
give  such  a  falsehood  immunity,  that  the  ignorance  was  not 
intentional  and  wilful,  if  it  arose  from  the  unquestionable  neg- 
ligence of  the  party.  Such  a  case  as  that  would  fall  within 
all  the  reason,  and  we  think  all  the  law,  of  intentional  false- 
hood. But  we  go  farther ;  and  say  that  if  the  ignorance 
might  have  been  avoided  by  such  care,  and  such  intelligence, 
and  such  investigation,  as  the  party  making  the  statement 
was  bound  to  have  and  use,  then  he  is  responsible  for  its 
effects,  (a)  But  while  we  admit  that  he  to  whom  a  delibe- 
rate assertion  is  made,  of  a  fact  material  to  his  conduct  and 
his  interests,  has  a  right  to  demand  that  earnest  inquiry  and 
careful  scrutiny  should  precede  such  assertion,  and  that  in 
their  absence  he  who  makes  it  must  be  held  responsible  for 
it,  we  stop  short  of  the  doctrine,  that  whoever  asserts  what 
he  does  not  know  to  be  true,  is  in  the  same  category  with 
him  who  asserts  what  he  knows  to  be  false.  This  would  be 
to  say  that  wilful  falsehood  and  mere  mistake  are  the  same 
thing  in  the  law ;  which  cannot  be  true.     Although  it  may 


(a)  And  the  case  of  Adamson  v.  Jar-  the  true  owner.  And  this  was  placed 
vis,  4  Bing.  66,  well  illustrates  this  on  the  ground  of  an  implied  contract 
principle.  There  the  defendant  gave  on  the  part  of  the  defendant  to  imlcm- 
thc  plaintiff,  an  auctioneer,  an  order  nifij  a  person  for  doing  what  he  had 
and  authority  to  sell  certain  goods,  re-  employed  him  to  do.  And  false  state- 
presenting  himself  to  be  the  true  owner,  nients  hy  a  vendor  of  land  of  the  cpian- 
The  plaintiff  sold  them,  and  paid  over  tity,  (piality.  or  boundaries  of  tlie  pre- 
the  proceeds  to  the  defendant.  The  mises  sold,  if  material,  and  relied  uj)on 
goods  proved  not  to  belong  to  the  de-  by  the  other  party,  will  avoid  the  sale, 
fendant,  and  the  true  owner  recovered  whctlier  the  vendor  knew  them  to  be 
tlieir  value  of  the  auctioneer.  The  lat-  false  or  not.  Warner  v.  Daniels,  1 
ter  was  allowed  to  recover  of  the  defend-  Wood.  &  Min.  90;  Aiiislie  v.  Medly- 
ant  for  having  falsely  represented  him-  cott,  9  Ves.  13;  Sliackelford  v.  Iland- 
self  to  be  the  true  owner,  although  ley,  1  A.  K.  Marsh.  500 ;  Munroc  v. 
there  was  no  evidence  of  any  fraud,  or  I'ritchett,  16  Ala.  785. 
malice,  or  knowledge  that  he  was  not 


CH.  III.]  DEFENCES.  283 

be  true  that  when  a  loss  must  fall  cither  on  one  who  mis- 
leads or  one  who  is  misled,  it  shall  be  cast  by  the  law  on 
the  first  rather  than  the  last,  still,  this  is  not  because  of  fraud, 
actual,  constructive,  or  legal,  but  simply  because  each  party 
should  bear  the  consequences  of  his  own  acts. 


284  THE  LAW  OF  CONTRACTS.  fPART  II. 


CHAPTER  IV. 


STATUTE   OF   FRAUDS. 


The  Statute  of  Frauds  and  Perjuries,  passed  in  the  twenty- 
ninth  year  of  Charles  the  Second,  was  intended  as  an  effect- 
ual prevention  of  all  the  more  common  frauds  practised  in 
society.  Bat  a  great  diversity  of  opinion  as  to  its  effect  has 
existed  both  in  England  and  in  this  country.  Provisions 
substantially  similar,  however,  have  been  made  by  the  States 
of  this  country,  although  in  no  State,  p^erhaps,  is  the  English 
statute  exactly  copied.  The  questions  which  have  arisen 
under  this  statute  are  almost  itinuinerable ;  and  the  great 
variety  of  cases  leave  some  of  them  as  yet  unsettled.  But 
the  statute  has  had  a  most  important  operation  upon  a  great 
variety  of  contracts;  especially  upon  those  of  sale  and  guar- 
anty ;  and  we  must  endeavor  to  present  the  results  of  the 
widely  extended  adjudications  on  the  subject. 

The  two  sections  which  peculiarly  affect  the  law  of  con- 
tracts, are  the  fourth  and  the  seventeenth.  By  the  fourth 
section  it  is  enacted  that  "  no  action  shall  be  brought  where- 
by to  charge  any  executor  or  administrator  upon  any  special 
promise,  to  answer  damages  out  of  his  own  estate ;  or 
whereby  to  charge  the  defendant  upon  any  special  promise 
to  answer  for  the  debt,  default,  or  miscarriages  of  another 
person  ;  or  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage  ;  or  upon  any  contract  for 
the  sale  of  lands,  tenements,  or  hereditaments,  or  any  interest 
in  or  concerning  them  ;  or  upon  any  agreement  that  is  not 
to  be  performed  within  the  space  of  one  year  from  the  mak- 
ing thereof;  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall 
be  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him  lawfully  au- 
thorized."    By  the  seventeenth  section  it  is  enacted  that 


CU.   IV.]  STATUTE   OF   FRAUDS.  285 

"  no  contract  for  the  sale  of  any  goods,  wares,  or  merchan- 
dises, for  the  price  of  ten  pounds  sterling  or  upwards,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  payment,  or 
that  some  note  or  memorandum  in  writing  of  the  said  bar- 
gain be  made  and  signed  by  the  parties  to  be  charged  by 
such  contract,  or  their  agents  thereunto  lawfully  authorized." 

It  is  obvious  that  the  most  general  purpose  of  these  sec- 
tions is,  to  permit  no  party  to  bind  himself  except  by  a  writ- 
ten promise,  signed  by  him  ;  because  this  will  secure  an 
exact  statement  and  the  best  evidence  of  the  terms  and  con- 
ditions of  the  promise.  Let  us  then  first  consider  what  sign- 
ing is  held  to  be  sufficient ;  then  what  the  agreement  must 
contain  and  express  ;  and  then  how  it  must  be  framed. 

It  was  decided  in  the  time  of  Lord  Hardivicke,  that  a  sub- 
stantial signing  of  the  agreement  was  sufficient,  although  it 
was  not  literal  and  formal,  (b)  Hence,  if  the  agreement  be 
not  itself  signed,  but  a  letter  alluding  to  and  acknowledging 
the  agreement  is  signed,  this  is  sufficient,  (c)    It  is  not,  how- 

(6)  See  Welford  v.  Beazely,  3  Atk.  it,  or  make  it  into  salable  bread.    The 

503.  sacks  of  flour  are  at  my  shop,  and  you 

(c)  Tawney  v.  Crowther,  3  Bro.  C.  will  send  for  them,  otherwise  I  shall 
C.  161,318;  Saunderson  v.  Jackson,  2  commence  an  action."  To  which  the 
B.  &  P.  238 ;  Shippey  v.  Derrison,  vendors  answered  by  their  attorney : 
5  Esp.  190;  Phillimore  v.  Barry,  1  "  Messrs.  L.  and  L.  consider  they  have 
Campb.  513  ;  Allen  i\  Bennet,  3  Taunt,  performed  their  contract  with  you  as 
170;  De  Beil  v.  Thompson,  3  Beav.  far  as  it  has  gone,  and  arc  ready  to 
469;  Macrory  v.  Scott,  5  Exch.  907;  complete  the  remainder;  and,  unless 
Gale  V.  Nixon,  6  Cow.  445  ;  Toomcr  v.  the  flour  is  paid  for  at  the  expiration  of 
Dawson,  Clieeves,  68.  And  the  letter  one  month,  proceedings  will  be  taken 
may  be  sent  to  the  plaintiff  himself,  or  for  the  amount."  Held,  that  the  jury 
the  acknowledgment  may  be  contained  were  warranted  in  concluding  that  the 
in  a  letter  sent  to  a  third  person.  Wei-  contract  mentioned  in  the  vendors'  an- 
ford  V.  Beazely,  3  Atk.  503.  And  the  swer  was  the  same  as  that  particular- 
indorsement  of  an  unsigned  contract  of  ized  in  the  purchaser's  letter,  and  that, 
sale  by  the  vendee  for  the  purpose  of  therefore,  the  two  writings  constituted  a 
transfer  will  operate  as  a  signature,  sufficient  memorandum  of  the  contract 
Norman  v.  Molett,  8  Ala.  546.  In  under  the  17th  section  of  the  statute  of 
Jackson  v.  Lowe,  1  Bing.  9,  the  pur-  frauds.  So  in  Dobell  i'.  Hutchinson,  3 
chaser  of  100  sacks  of  good  English  Ad.  &  El.  355,  the  purchaser  of  lands 
seconds  flour,  at  45s.  a  sack,  wrote  to  by  auction  signed  a  memorandum  of 
the  vendors  as  follows :  "  I  hereby  give  the  contract,  indorsed  on  the  particulars 
you  notice,  that  the  flour  you  deli-  and  conditions  of  sale,  and  referring  to 
vercd  to  me,  in  part  performance  of  my  them.  Afterwards  he  wrote  to  the 
contract  with  you  for  100  sacks  of  good  vendor,  complaining  of  a  defect  in  the 
English  seconds  flour,  at  45.?.  per  sack,  title,  referring  to  the  contract  expressly, 
is  of  so  bad  a  quality  that  I  cannot  sell  and  renouncing  it.    The  vendor  wrote 


286 


THE   LAW   OF   CONTRACTS. 


[part  II. 


ever,  enough  that  the  agreement  be  written  by  the  party  him- 


and  signed  several  letters,  mentioning 
the  property  sold,  the  names  of  the  par- 
tics,  and  some  of  the  conditions  of  sale, 
insisting  on  one  of  them  as  curing  the 
defect,  and  demanding  tiie  execution  of 
the  contract.  /AW,  that  these  letters 
mi;j;ht  be  connected  with  the  particulars 
and  conditions  of  sale,  so  as  to  consti- 
tute a  memorandum  in  writing,  binding 
the  vendor  under  the  statute  of  frauds, 
although  neither  the  original  conditions 
and  particulars,  nor  the  memorandum 
signed  by  the  purchaser,  mentioned,  or 
were  signed  by,  the  vendor.  In  Boy- 
dell  i;.  Drummond,  2  Campb.  157,  11 
East,  142,  the  pajier  containing  the  sig- 
nature was  held  not  to  refer  with  suffi- 
cient certainty  to  the  paper  containing 
the  terms  of  the  contract. — Where  there 
is  a  prior  insufficient  or  unsigned  writ- 
ten contract,  the  plaintiff  cannot  avail 
himself  of  a  subsequent  letter  from  the 
defendant,  in  which,  though  the  order 
for  goods  be  recognized,  the  terms  of 
the  contract  are  renounced  and  dis- 
affirmed. Thus,  in  Cooper  v.  Smith, 
15  East,  103,  there  was  a  defective  me- 
morandum of  a  bargain  for  the  sale  of 
goods ;  but  the  defendant  wrote  a  letter, 
in  which,  though  he  admitted  the  order, 
he  insisted  that  the  goods  had  not  been 
delivered  in  time  ;  and  it  was  held,  that 
the  letter  did  not  supply  the  defects  of 
the  memorandum,  and  that  it  was  not 
competent  for  the  plaintiff  to  prove,  by 
parol  testimony,  that  it  was  not  stipu- 
lated that  the  goods  should  be  delivered 
within  a  given  time.  And  this  case 
was  recognized  in  Richards  v.  Porter,  6 
B.  &  Cr.  4.37.  There  A.  sent  to  B.,  on 
the  25th  of  January,  an  invoice  of  five 
pockets  of  hops,  and  delivered  the  hops 
to  a  carrier  to  be  conveyed  to  B.  In 
the  invoice,  A.  was  described  as  the 
seller  and  B.  as  the  purchaser  of  the 
hops.  B.  afterwards  wrote  to  A.  as 
follows:  "The  hops  I  bought  of  A.  on 
the  23d  January  are  not  yet  arrived.  I 
received  the  invoice  ;  the  last  were 
longer  on  the  road  than  they  ought  to 
have  been  ;  however,  if  they  do  not 
arrive  in  a  few  days,  I  must  get  some 
elsewhere."  ILld,  that  the  invoice  and 
this  letter,  taken  together,  did  not  con- 
stitute a  note  in  writing'  of  the  contract 
to  satisfy  the  statute  of  frauds.  To  the 
same  cHTect  is  Anher  i'.  Baynes,  5 
Exch  625.  There  the  defendant  ver- 
bally agreed  to  purchase  of  the  plaintilf 


certain  barrels  of  flour.  The  defendant 
afterwards  wrote  to  the  plaintiff,  stating 
that  he  had  received  some  barrels, 
which  were  not  so  fine  as  the  sample, 
and  were  not  the  barrels  he  had  bought, 
and  that  he  would  not  have  them.  In 
answer  the  plaintiff'  wrote  as  follows: 
"Annexed  you  have  invoice  of  the 
flour  sold  you  last  Friday.  I  am  very 
much  astonished  at  your  finding  fault 
with  the  flour.  It  was  sold  to  you  sub- 
ject to  your  examining  the  bulk ;  and 
it  was  not  until  after  you  had  examined 
it,  and  satisfied  yourself  both  of  the 
quality  and  condition,  that  you  con- 
firmed the  purchase.  What  was  for- 
warded you  was  the  same  you  saw. 
Under  these  circumstances,  you  cannot, 
therefore,  object  to  fulfil  your  agree- 
ment." The  defendant  replied  as  fol- 
lows :  —  "I  beg  to  say,  the  barrels  I  have 
received  is  not  the  same  I  saw.  I  took 
a  sample  with  me  from  the  sample  1 
have,  and  the  bari-els  I  saw  was  quite 
as  fine  as  I  compared  them  with,  nor 
was  they  lumpy.  Now  the  barrels  I 
have  received  is  all  very  lumpy,  and 
none  of  them  so  fine  as  the  same.  If 
you  will  take  them  back  and  pay 
charges,  I  will  with  pleasure  send  them. 
There  must  be  some  mistake  about 
them."  Held,  that  the  letters  did  not 
constitute  a  sufficient  note  or  memo- 
randum, in  writing,  of  the  contract, 
within  the  17th  section  of  the  statute  of 
frauds.  Alderson,  B.,  said  :  —  "No  doubt 
if  the  letter  of  the  plaintiff  of  the  3d  of 
October,  and  of  the  defendant  in  an- 
swer, taken  together,  contained  a  suffi- 
cient contract,  namely,  one  that  would 
express  all  its  terms,  they  would  con- 
stitute a  memorandum  in  writing  with- 
in the  statute.  We  have  no  difficulty, 
therefore,  in  coming  to  the  conclusion 
that  these  letters  may  be  looked  at  for 
the  purj)Ose  of  seeing  whether  or  not 
they  contain  a  sufficient  contract  to  take 
the  case  out  of  the  statute  ;  but  looking 
at  them,  we  do  not  think  tlicy  do. 
They  do  not  express  all  the  terms  of  the 
contract:  and  the  case  is  in  truth  go- 
verned by  Richards  v.  Porter,  which 
was  cited  in  the  course  of  the  argument, 
and  in  which  Lord  Tenterden  gave  a 
similar  decision  as  to  a  document  of  a 
similarnaturcwhieh  was  then  before  him. 
There  is  a  distinct  refusal  on  the  part 
of  the  defendant  to  accept  the  flour 
which  he  hud  bought  of  the  plaintiff. 


CH.  IV.] 


STATUTE   OF   FRAUDS. 


287 


self,  unless  he  also  signs  it.  (d)  If,  however,  he  writes  his 
name  in  any  part  of  the  agreement,  it  may  be  taken  as  his 
signature,  provided  it  was  there  written  for  the  purpose  of 
giving  authenticity  to  the  instrument,  and  thus  operating  as 
a  signature  ;  (e)   but  not  otherwise.  (/)     The  fact  of  the 


It  is  clear  from  the  letters  that  he  had 
bought  the  flour  from  the  plaintiff  upon 
some  contract  or  otlier ;  but  whether  he 
bought  it  it  on  a  contract  to  take  the 
particuhir  barrels  of  flour  whicii  he  had 
seen  at  the  warehouse,  or  whetlier  he 
had  bought  them  on  a  particular  sam- 
ple which  had  been  delivered  to  him,  on 
the  condition  that  they  should  agree 
with  that  sample,  docs  not  appear  ;  and 
that  which  is  in  truth  the  dispute  be- 
tween the  parties  is  not  settled  by  the 
contract  in  writing."  See  also  Kent  v. 
Huskinson,  3  B.  &  P.  233;  Smith  v. 
Surman,  9  B.  &  Cr.  561.  — The  letter, 
it  seems,  must  be  sent,  and  the  memo- 
randum completed  before  the  action  is 
brought.  Bill  v.  Bament,  9  M.  &  W. 
36.  In  that  case,  Martin,  arguendo,  con- 
tended that  a  memorandum  written 
after  the  commencement  of  the  action 
was  sufficient.  But  Parlce,B.,  said:  — 
"  With  regard  to  the  point  which  has 
been  made  by  Mr.  Martin,  that  a  memo- 
randum in  writing  after  action  brought 
is  sufficient,  it  is  certainly  quite  a  new 
point,  but  I  am  clearly  of  opinion  that 
it  is  untenable.  There  must,  in  order 
to  sustain  the  action,  be  a  good  contract 
in  existence  at  the  time  of  action 
brought ;  and  to  make  it  a  good  con- 
tract under  the  statute,  there  must  be 
one  of  the  three  requisites  therein  men- 
tioned." But  see  Fricker  v.  Thomlin- 
son,  1  M.  &  Gr.  772. 

(d)  Hawkins  v.  Holmes,  1  P.  Wms. 
770  ;  Selby  v.  Selby,  3  Mer.  2  ;  Hubert 
V.  Moreau,  12  Moore,  216;  Anderson 
V.  Harold,  10  Oiiio,  399 ;  Hubert  v. 
Turner,  4  Scott,  N.  R.  486 ;  Bailey  v. 
Ogden,  3  Johns.  399.  And  a  fortiori,  a 
mere  alteration  of  the  instrument  in  the 
handwriting  of  the  party  sought  to  be 
charged,  will  not  be  sufficient.  Haw- 
kins V.  Holmes,  1  P.  Wms.  770. 

(e)  Thus,  in  Propert  v.  Parker,  1 
Rus.  &  My.  625,  it  was  held,  that  if  the 
defendant  himself  write  the  agreement 


for  the  purchase  of  a  leasehold  house, 
and  states  his  own  name  in  the  third 
person,  as  "Mr.  A.  B.  has  agreed;" 
this  is  a  good  contract  within  the  sta- 
tute of  frauds,  though  he  does  not 
oilierwise  sign  the  agreement ;  the  Mas- 
ter of  the  Rolls  observing  that  "  what 
the  statute  of  frauds  requires  is,  that 
the  party  who  is  sought  to  be  charged 
shall,  by  writing  his  own  name,  have 
attested  that  he  has  entered  into  the 
contract."  So  in  Johnson  v.  Dodgson, 
2  M.  &  W.  653,  where  the  defendant 
wrote  in  his  own  book  a  memorandum 
of  the  contract,  and  requested  the  other's 
signature,  this  was  held  to  be  a  suffi- 
cient acknowledgment  of  the  contract, 
and  his  name  was  considered  as  signed, 
though  not  appearing  at  the  end,  but 
in  the  body  of  the  memorandum.  And 
Lord  Ahinger  said: — "The  statute  of 
frauds  requires  that  there  should  be  a 
note  or  memorandum  of  the  contract  in 
writing,  signed  by  the  party  to  be 
charged.  And  the  cases  have  decided 
that,  although  the  signature  be  in  the 
beginning  or  middle  of  the  instrument, 
it  is  as  binding  as  if  at  the  foot  of  it; 
the  question  being  always  open  to  the 
jury,  whether  the  party,  not  having 
signed  it  regularly  at  the  foot,  meant  to 
be  bound  by  it  as  it  stood,  or  whether  it 
was  left  so  unsigned  because  he  refused 
to  complete  it.  But  when  it  is  ascer- 
tained that  he  meant  to  be  bound  by  it 
as  a  complete  contract,  the  statute  is 
satisfied,  there  being  a  note  in  writing 
showing  the  terms  of  the  contract,  and 
recognized  by  him.  I  think  in  this  case 
the  requisitions  of  the  statute  are  fully 
complied  with."  Again,  in  Merritt  v. 
Clason,  12  Johns.  102  ;  S.  C.  nom.  Cla- 
son  V.  Bailey,  14  Id.  484,  it  was  held 
that  a  memorandum  of  a  contract  for 
the  purchase  of  goods,  written  by  a  bro- 
ker employed  to  make  the  purchase,  in 
his  book,  in  the  presence  of  the  vendor, 
the  names  of  the  vendor  and  vendee  and 


(/)   Thus,    in   Stokes  v.  Moore,   1     made  for  the  renewal  of  a  lease  by  the 
Cox,   219,  where    an   agreement   was     defendant  to  the  plaintiff',  and  the  de- 


288 


THE   LAW   OF   CONTRACTS. 


PART  II. 


delivery  of  the  instrument,  as  a  promise,  would  have  much 
weight  in  determining  this  question.     If  one  wrote,  "  In  con- 


the  terms  of  the  purchase  being  in  the 
body  of  tlie  memorandum,  but  not  sub- 
scribed by  the  parties,  is  a  sufficient 
memorandum  witiiin  the  statute  of 
frauds.  See  also  Ogilvie  v.  Foljambe, 
3  Mer.  53;  Tcnniman  v.  Hartshorn,  13 
Mass.  87  ;  Knight  v.  Crockford,  1  Esp. 
190;  Saundcrson  v.  Jackson,  2  B.  &  P. 
238.  And  it  is  not  necessary  that  the 
name  should  be  ■written  after  the  writ- 
ing of  the  agreement.  One  may  write 
the  contract  on  a  piece  of  paper  on 
which  his  name  has  been  previously 
placed.  The  delivery  of  the  memoran- 
dum shows  the  intention  that  the  name 
should  operate  as  a  signature.  And 
therefore,  where  the  defendant  had  writ- 
ten, signed,  and  delivered  a  complete 


memorandum,  and  afterwards,  at  the 
plaintiff's  request,  made  an  alteration 
on  the  paper,  for  the  purpose  of  cor- 
recting a  mistake,  and  re-delivered  the 
paper  to  the  plaintiff,  it  was  held  that  a 
signature  to  this  alteration  was  unne- 
cessary, because  authenticated  by  the 
signature  already  on  the  jiaper.  Black 
V.  Gompertz,  7  Exch.  862.  And  Pol- 
lock, C.  B.,  said:  — "We  think  that 
words  introduced  into  a  paper  signed 
by  a  party,  or  an  alteration  in  it,  may 
be  considered  as  authenticated  by  a  sig- 
nature already  on  the  paper,  if  it  is 
plain  that  they  were  meant  to  be  so 
authenticated.  The  act  of  signing  after 
the  introduction  of  the  words  is  not 
absolutely  necessary." 


fendant  wrote  instructions  to  an  attor- 
ney, from  Avhence  the  same  was  to  be 
prepaid,  in  the  words  following:  — 
"  The  lease  renewed,  Mrs.  Stokes  to 
pay  the  king's  tax,  also  to  pay  Moore 
£2A  a  year,  half-yearly ; "  it  was  held 
that  this  was  not  a  memorandum  signed 
within  the  statute.  And  Ski/ner,  C.  B., 
said  :  —  "  The  question  in  this  case  is, 
whether  the  written  note  stated  in  the 
pleadings  is  such  an  agreement  as  is 
within  the  meaning  of  the  statute  of 
frauds.  These  are  instructions  to  the 
attorney  for  the  preparation  of  the  lease. 
This  is  no  formal  signature  of  the  de- 
fendant's name,  but  one  term  of  the  in- 
structions is  that  the  rent  is  to  be  paid 
to  Moore ;  and  the  question  is,  whether 
the  name  so  inserted  and  written  by  the 
defendant  is  a  sufiicient  signing.  The 
purport  of  the  statute  is  manifest,  to 
avoid  all  parol  agreements,  and  that 
none  should  have  effect  but  those  signed 
in  the  manner  therein  specified.  It  is 
argued  that  the  name  being  inserted  in 
any  part  of  the  writing  is  a  sufHcient 
signature.  The  meaning  of  the  statute 
is,  that  it  should  amount  to  an  achiow- 
ledgmtnt  bij  the  parly  that  it  is  his  agree- 
ment, and  if  the  name  does  not  give 
such  authenticity  to  the  instrument,  it 
does  not  amount  to  what  the  statute 
requires.  Here  the  insertion  of  the 
name  has  not  this  effect.  This  memo- 
randum might  be  drawn  subject  to  ad- 
ditions or  alterations,  and  does  not 
appear  to  be  the  final  agreement  of  the 
parties,  and  indeed,  as  far  as  wc  can 


admit  parol  evidence,  it  is  proved  not 
to  be  so,  for  the  subject  of  repairs  is  not 
mentioned  in   the   instructions ;  which 
shows  that  the  ends  of  the  statute  are 
not   to   be  obtained,   if  so   informal  a 
paper  is  to  be  admitted  as  a  written 
agreement.    No  case  has  been  adduced 
in  point,  but  it  has  been  compared  to 
the  case  of  wills,  where  a  name  written 
in  the  introduction  has  been  considered 
as  a  signature,  but  that  seems  to  me  a 
veiy  different  case.     The  cases  on  wills 
have  been  where   the   instrument,  im- 
porting to  be   the  final   instrument  of 
the  party,  has  been  formally  attested, 
and  it  is  in  its  nature  complete,  and  the 
only   question  has  been,   whether    the 
form  of  the  statute  has  been  complied 
with.     In  the  present  case  I  think  it  is 
by  no  means  so,  and  it  would  be  of  very 
dangerous  tendency  to  admit  the  memo- 
randum to  be  an  agreement  within  the 
statute."    Eyre,  B.    "  I  think  this  can- 
not be  considered  such  a  signature  as 
the  statute  requires.     The  signature  is 
to  have  the  effect  of  giving  authenticity 
to   the  whole  instrument,   and   if   the 
name  is  inserted  so  as  to  have  that  effect, 
I  do  not  think  it  signifies  much  in  what 
part  of  the  instrument  it  is  to  be  found: 
it  is  perhaps  difficult,  except  in  the  case 
of  a  letter  with  a  postscript,  to  find  an 
instance  wliere  a  name  inserted  in  the 
middle  of  a  writing  can  well  have  that 
effect ;  and  there  tlie  name  being  gene- 
rally found  in  a  particular  place  by  the 
common  usage  of  mankind,  it  may  very 
probably  have  the  effect  of  a  legal  sig- 


Cir.  IV.]  STATUTE    OF   FRAUDS.  289 

sideration  of,  &c.,  I,  A.  B.,  promise  to  C.  D.,  &c.,"  and  kept 
the  paper  in  his  own  hands  without  signature,  it  might  be 
supposed  that  he  delayed  signing  it  because  he  was  not 
ready  to  make  his  promise  and  bind  himself.  So,  if  he  gave 
it  to  the  other  party  to  examine  and  see  if  it  was  acceptable 
to  him,  or  for  any  similar  purpose,  it  would  not  be  held  to  be 
signed  by  him.  But  if  he  gave  the  instrument  written  as  above 
distinctly  as  his  promise,  then  the  signature  would  be  held 
sufficient.  Generally,  this  question  could  be  determined  by 
a  construction  of  the  instrument  itself,  aided  however  by  the 
res  gestce  which  were  admissible  as  evidence.  In  some  of 
our  States,  the  word  of  the  statute  is  not  "  signed,"  but 
"subscribed;"  and  where  this  word  is  used,  the  signature 
must  be  at  the  end.  {g)  One  may  sign  in  the  place  where 
a  witness  usually  signs,  and  under  that  name,  and  yet  intend 
to  sign  as  principal,  and  would  of  course  be  so  regarded ; 
but  it  has  been  also  held  that  if  one  signs  actually  as  a  wit- 
ness, and  with  no  other  intention,  yet  with  a  full  knowledge 
of  the  contents  of  the  paper,  and  an  approbation  of  them,  it 
would  be  a  sufficient  signature  to  bind  the  party  to  the  per- 
formance of  any  acts  contained  in  the  instrument  which  were 
necessarily  to  be  performed  by  him  in  order  to  carry  the  in- 
strument into  effect.  (Ji)  And  where  one  is  in  the  habit  of 
using  instruments  with  his  name  printed  in  them,  this  will 
be  his  signature,  {i)  And  so  if  he  writes  it  in  pen- 
nature,  and  extend  to  the  -whole  ;  but  I  the  vendor  was  printed,  and  that  of  the 
do  not  understand  how  a  name  inserted  vendee  written  by  the  vendor,  was  a  suffi- 
in  the  body  of  an  instrument,  and  appli-  cient  memorandum  of  the  contract  with- 
cable  to  particular  purposes,  can  amount  in  the  statute  of  frauds  to  charge  the 
to  such  an  authentication  as  is  required  vendor.  And  Lord  Ellenhorough  said  : 
by  the  statute."  See  also  Cabot  v.  Has-  "I  cannot  but  think  that  a  construction, 
kins,  3  Pick.  83 ;  Cowie  v.  lierafry,  10  which  went  the  length  of  holding  that 
Jur.  789.  in  no  case  a  printing  or  any  other  form 

(a)  Davis  v  Shields  24  Wend.  322  ^^  signature  could  be  substituted  in  lieu 
26  id.  341  ;  Vielie  v.  Os'good,  8  Ba"rb.  of  writing,  would  be  going  a  great  way, 
130.  But  see,  contra,  James  v.  Patten,  considering  how  many  instances  may 
j^j  344_  occur  m  which  the  parties  contracting 

/iv  w  ir    A       Tj        1     o    A.i     rno     arc  uuablc  to  sigu.    If  indeed  this  case 
(h)  Welford  V.  Beazely,  3  Atk    503,    j,^,j  nested  merely  on  the  printed  name, 
1  Ves.  6  ;  Coles  v  Trecothick,  9  Ves.    unrecognized  by,  and  not  brought  home 
234.    But  see  Gosbell  v.  Archer,  2  Ad.    ^     ^^^  p^ny,  as  having  been  pWntcd  by 


him,  or  by  his  authority,  so   that  the 


&  El.  500. 

(?)  Saunderson  v.  Jackson,   3   Esp.  printed  name  had  been  unappropriated 

180,  2  B.  &  P.  238.    In  Schneider  17.  to  the  particular  contract,  it  might  have 

Norris,  2  M.  &  S.  286,  it  was  liM  that  afforded  some  doubt  whether  it  would 

a  bill  of  parcels  in  which  the  name  of  not  be  intrenching  upon  the  statute  to 

VOL.  II.  25 


290 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


cil.  {j)  And  it  is  now  quite  settled  that  the  agreement  need 
not  be  signed  by  both  parties,  but  only  by  him  who  is  to'  be 
charged  by  it.  (k)     And   he  is  estopped  from   denying  the 


have  admitted  it.  But  here  there  is 
a  signing  by  the  party  to  be  charged  by 
words  recognizing  the  printed  name  as 
much  as  if  he  liad  subscribed  his  mark 
to  it,  which  is  strictly  the  meaning  of 
signing,  and  by  tliat  the  party  has  in- 
corporated and  avowed  the  thing  print- 
ed to  be  his  ;  and  it  is  the  same  in  sub- 
stance as  if  lie  had  written  Norris  &  Co. 
with  his  own  hand.  He  has  by  his 
handwriting  in  effect  said,  I  acknow- 
ledge what  I  have  written  to  be  for  the 
purpose  of  exhibiting  my  recognition  of 
the  within  contract.  I  entertained  the 
same  opinion  at  the  trial,  and  cannot 
say  tliat  it  has  been  changed  by  the 
argument.  It  appears  to  me,  therefore, 
that  the  printed  name  thus  recognized 
is  a  signature  sufficient  to  take  this  case 
out  of  the  statute."  Le  Blanc,  J.  "  Sup- 
pose the  defendant  had  stamped  the 
bill  of  parcels  with  his  own  name, 
would  not  that  have  been  sufficient? 
Such  a  stamping,  as  it  seems  to  me,  if 
required  to  be  done  by  the  party  him- 
self or  by  his  authority,  would  afford  the 
same  protection  as  signing." 

(  /)  Merritt  v.  Clason,  12  Johns.  102  ; 
S.  C.  710771.  Clason  v.  Bailey,  14  Johns. 
484  ;  Draper  v.  Pattina,  2  Speers,  292 ; 
McDowel  V.  Chambers,  1  Strobh.  Eq. 
347  ;  Geary  v.  Physic,  5  B.  &  Cr.  234. 

(k)  It  has  been  questioned  whether 
the  correct  interpretation  of  the  statute 
does  not  require  the  signature  of  both 
parties.  In  Lawrenson  v.  Butler,  1  Sch. 
&  Lefr.  13,  Lord  liedesdale  thought  that 
specific  performance  of  a  conti-act  should 
not  be  enforced  against  one  party  un- 
less the  other  was  bound  also.  "  I  con- 
fess," said  he,  "I  have  no  conception 
that  a  court  of  equity  ought  to  decree 
a  specific  performance  in  a  case  where 
nothing  has  been  done  in  pursuance  of 
the  agreement,  except  where  both  par- 
ties had  by  the  agreement  a  right  to 
compel  a  specific  performance,  accord- 
ing to  the  advantage  which  it  might  be 
supposed  that  they  were  to  derive  from 
it ;  because  otherwise  it  would  follow 
that  the  court  would  decree  a  specific 
performance  where  the  party  called 
upon  to  perform  might  be  in  this  situa- 
tion, tliat  if  tlie  agreement  was  disad- 
vantageous to  him  he  would  be  liable  to 


the  performance,  and  yet  if  advantage- 
ous to  him  he  could  not  compel  a  per- 
formance. This  is  not  equity,  as  it 
seems  to  me.  If  indeed  there  was  a 
concealment,  or  an  ignorance  of  the 
facts,  on  the  one  part,  and  that  thereby 
the  other  party  was  led  into  a  situation 
from  whence  he  could  not  be  extricated, 
then  he  would  have  a  right  to  have  the 
agreement  executed  cy  pres ;  tliat  is,  a 
new  agreement  is  to  be  made  between 
the  parties."  And  see  note  to  Sweet  v. 
Lee,  3  M.  &  Gr.  462.  But  it  is  now 
well  settled  that  the  signature  of  the 
party  charged  in  the  action  satisfies  the 
requirement  of  the  statute.  Hatton  v. 
Gray,  2  Ch.  Cas.  164;  Coleman  v.  Up- 
cot,  Vin.  Abr.  tit.  Contract  and  Agree- 
ment,'- (I),  pi.  17  ;  Seton  v.  Slade,  7 
Ves.  265  ;  Fowle  v.  Freeman,  9  Ves. 
351 ;  Martin  v.  Mitchell,  2  Jac.  &  W.  426 ; 
Laythoarp  v.  Bryant,  2  Bing.  N.  C. 
735 ;  Egerton  v.  Mathews,  6  East,  307  ; 
Allen  V.  Bennet,  3  Taunt.  169;  Schnei- 
der V.  Norris,  2  M.  &  S.  286  ;  Ballard 
V.  Walker,  3  Johns.  Cas.  60  ;  Clason  v. 
Bailey,  14  Johns.  484  ;  M'Crea  v.  Pur- 
mort,  16  Wend.  460;  Shirley  v.  Shir- 
ley, 7  Blackf.  452  ;  Penniman  v.  Harts- 
horn, 13  Mass.  87  ;  Douglass  v.  Spears, 

2  Nott  &  M'Cord,  207 ;  Barstow  v.  Gray, 

3  Greenl.  409.  In  Plight  v.  Bolland,  4 
Euss.  298,  where  a  bill  was  filed  by  an 
infant  for  the  specific  performance  of  a 
contract,  Sir  John  Leach  said :  —  "  No 
case  of  a  bill  filed  by  an  infant  for  the 
specific  performance  of  a  contract  made 
by  him  has  been  found  in  the  books.  It 
is  not  disputed,  that  it  is  a  general  prin- 
ciple of  courts  of  equity  to  interpose 
only  where  the  remedy  is  mutual.  The 
plaintifi"'s  counsel  principally  rely  ujion 
a  supposed  analogy  afforded  liy  cases 
under  the  statute  of  frauds,  where  the 
plaintiff  may  obtain  a  decree  for  speci- 
fic performance  of  a  contract  signed  by 
the  defendant,  although  not  signed  by 
the  plaintiff.  It  must  be  admitted  that 
such  now  is  the  settled  rule  of  the  court, 
although  seriously  questioned  by  Lord 
liedesdale  upon  the  ground  of  want  of  mu- 
tuality. But  these  cases  are  supported, 
first,  because  the  statute  of  frauds  only  re- 
quires the  agreement  to  be  signed  by  the 
party  to  be  charged  ;  and  next,  it  is  said 


CII.  IV.] 


STATUTE    OF   FRAUDS. 


291 


execution  of  the  instrument  on  the  ground  that  it  wants  the 
signature  of  the  other  party.  (/) 

The  signature  may  be  made  by  an  agent ;  (ni)  and  the 
agent  may  write  his  own  name  instead  of  his  principal's ;  {n) 
and  a  ratification  of  the  signature  would   have   the  same 


that  the  plaintiff,  by  tlie  act  of  filing  the 
bill,  has  made  the  remedy  mutual.  Nei- 
ther of  these  reasons  apply  to  the  case 
of  an  infant."  In  Fenly  v.  Stewart,  5 
Sandf.  101,  the  principle  of  the  deci- 
sions upon  this  point  was  thus  stated  by 
Mason,  J.  "  This  construction,"  said 
he,  "  has  proceeded  not  on  the  ground 
that  contracts  need  not  be  mutual,  but 
that  the  statute,  in  certain  enumerated 
cases,  has  taken  away  the  power  of  en- 
forcing contracts,  which  would  other- 
wise be  mutually  binding,  unless  the  par- 
ties against  whom  they  are  sought  to 
be  enforced  have  subscribed  some  note 
or  memorandum  thereof  in  writing.  If 
a  mutual  contract  is  made,  and  one  of 
the  parties  to  it  gives  the  other  a  memo- 
randum, in  pursuance  of  the  statute, 
but  neglects  to  take  from  that  other  a 
corresponding  memorandum,  he  has  but 
himself  to  blame  if  he  is  unable  to  com- 
pel its  performance,  while  he  is  bound 
to  the  other  party.  The  difficuUy  is 
not  that  the  contract,  as  originally  en- 
tered into,  is  not  mutual,  but  that  one 
of  the  parties  has  not  the  evidence 
■which  the  statute  has  made  indispensa- 
ble to  its  enforcement.  It  necessarily 
follows,  however,  from  the  provision  of 
the  statute,  that  all  inquiry  as  to  whe- 
ther or  not  a  contract  was  originally 
mutual,  is  immaterial.  It  may  be  en- 
forced against  the  party  who  has  sub- 
scribed a  note  or  memorandum  of  it, 
though  the  other  party,  by  not  having 
signed,  is,  by  the  express  words  of  the 
statute,  freed  from  its  obligation."  By 
the  New  York  Revised  Statutes,  Part  2, 
ch.  7,  tit.  1,  ^  8,  it  is  enacted  that 
"  every  contract  for  the  leasing  for  a 
longer  period  than  one  year,  or  for  the 
sale  of  any  lands,  or  any  interest  in 
lands,  shall  be  void,  unless  the  contract, 
or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  be  in  writ- 
ing, and  be  subscribed  bij  the  party  b;/ 
ichom  the  lease  or  sale  is  to  be  made."  For 
the  construction  of  this  section,  see  Mil- 
ler I'.  Pelletier,  4  Edw.  Ch.  102;  Coles 
V.  Bowne,  10  Paige,  526  ;  Champlin  v. 
Parish,   1 1  Paige,  405  ;  National  Fire 


Ins.  Co.  V.  Loomis,  11  Paige,  431  ; 
Worral  v.  Munn,  1  Seld.  229. 

(/)  See  cases  cited  in  preceding  note. 

(m)  Hawkins  ■?;.  Chace,  19  Pick.  502. 
And  where  a  testator  from  illness  was 
unable  to  write,  and  his  signature  was 
made  by  having  his  hand  guided,  this 
was  held  a  signature.  Wilson  v.  Bed- 
dard,  12  Sim.  28.  The  law,  however, 
will  not  presume  the  authority  to  sign, 
but  the  agent  must  have  an  authority 
directly  deducible  from  his  employment, 
or  a  special  authority  to  do  that  par- 
ticular thing.  Hawkins  i-.  Chace.  19 
Pick.  502  ;  Dixon  v.  Broomfield,  2 
Chitt.  205  ;  Hodgkins  v.  Bond,  1  N.  H. 
284  ;  Pitts  v.  Beckett,  13  M.  &  W.  743. 
In  Graham  v.  Musson,  5  Bing.  N.  C. 
603,  the  defendant,  the  purchaser  of 
goods,  requested  one  Dyson,  the  agent 
of  the  seller,  to  write  a  note  of  the  con- 
tract in  the  defendant's  book.  Dyson 
did  so,  and  signed  the  note  with  his 
own  name.  Held,  that  such  note  was 
not  sufficient,  under  the  statute  of  frauds, 
to  bind  the  defendant.  And  per  Vaugh- 
an,  J.,  "  The  plaintiffs'  case  fiiils  in  their 
not  showing  that  Dyson  was  the  de- 
fendant's agent ;  it  is  unnecessary,  there- 
fore, to  enter  into  the  authorities  which 
have  been  cited.  Dyson  was  agent  for 
the  plaintiffs,  and  the  defendant,  in  re- 
questing him  to  make  the  entry  in  his 
book,  probably  sought  to  fix  the  plain- 
tiffs, but  not  to  appoint  Dyson  as  agent 
for  himself."  And  the  agent  cannot 
delegate  his  authority  to  sign.  Blore  v. 
Sutton,  3  Mer.  237 ;  Henderson  v. 
Barnewall,  1  Y.  &  Jer.  387. 

(n)  And  in  such  case  parol  evidence 
is  admissible  to  show  the  authority  and 
bind  tlie  principal.  Trueman  v.  Loder, 
1 1  Ad.  &  El.  589.  In  this  case  Lord 
Denman  said  :  —  "  Parol  evidence  is 
always  necessary  to  show  that  the  party 
sued  is  the  person  making  the  contract, 
and  bound  by  it.  Whether  he  docs  so 
in  his  own  name  or  in  that  of  another, 
or  in  a  feigned  name,  and  whether  the 
contract  be  signed  by  his  own  hand  or 
by  that  of  an  agent,  are  inquiries  not 
different  in  their  nature  from  the  ques- 


292 


THE   LAW   OF   CONTRACTS. 


[part  II. 


effect  as  an  original  authority,  (o)  But  the  agency  must  be 
an  agency  for  this  purpose  ;  for  it  would  not  be  deemed  the 
signature  of  a  principal  by  an  agent,  although  the  party 
actually  writing  the  name  was  for  some  purposes  the  agent 
of  the  other,  if  it  was  apparent  from  the  paper  itself  that  it 
was  intended  to  complete  the  paper  by  the  actual  signature 
of  the  principal  himself,  (p)  Nor  can  one  of  the  contracting 
parties  be  the  agent  of  the  other  for  this  purpose,  {q)  Though 
an  auctioneer  (r)  or  broker  (s)  may  be  for  either.     And  for 


tion  who  is  the  pei-son  who  has  just 
ordered  goods  in  a  shop.  If  ho  is 
sued  for  the  price,  and  his  identity  made 
out,  the  contract  is  not  varied  by  ap- 
pearing to  have  been  made  by  him  in  a 
name  not  his  own." 

(o)  Maclean  v.  Dunn,  4  Bing.  722. 

(/*)  Thus,  in  Hubert  v.  Turner,  4 
Scott,  N.  K.  486,  an  agreement  was 
drawn  by  the  defendants'  agent,  wliich 
recited  in  the  usual  way  the  names  of 
the  contracting  parties,  and  at  the  end 
were  these  words,  "  as  witness  our 
hands ;  "  but  it  was  never  in  fact  signed. 
Held,  that  it  was  not  sufficient  to  bind 
the  defendants.     And  sec  supra,  n.  (/). 

((j)  Wright  V.  Dannah,  2  Campb. 
203;  Rayner  v.  Linthornc,  2  C.  &  V. 
124.  In  Farebrother  v.  Simmons,  5  B. 
&  Aid.  333,  where  an  auctioneer  wrote 
down  the  defendant's  name  by  his  au- 
thority opposite  to  the  lot  purchased,  it 
was  held,  that  in  an  action  brought  in 
the  name  of  the  auctioneer,  the  entry  in 
such  book  was  not  sufficient  to  take  the 
case  out  of  the  statute.  And  Abbott,  C. 
J.,  said:  —  "The  question  is,  whether 
the  writing  down  the  defendant's  name 
by  the  plaintiff,  with  the  authority  of 
the  defendant,  be  in  law  a  signing  by 
the  defendant's  agent.  In  general,  an 
auctioneer  may  be  considered  as  the 
agent  and  witness  of  both  parties.  But 
the  difficulty  arises,  in  this  case,  from 
the  auctioneer  suing  as  one  of  the  con- 
tracting parties.  The  case  of  Wright  r. 
Dannaii  seems  to  me  to  be  in  point,  and 
fortifies  the  conclusion  at  which  I  have 
arrived,  viz.,  that  the  agent  contem- 
plated by  the  legislature,  who  is  to  bind 
a  defendant  by  his  signature,  must  be 
some  tliird  person,  and  not  tlic  other 


contracting  party  upon  the  record." 
But  see  Bird  w.  "Boulter,  4  B.  &  Ad. 
443,  in  which  Farebrother  v.  Simmons 
is  somewhat  questioned. 

()•)  It  was  formerly  questioned  whether 
auction  sales  were  within  the  provisions 
of  the  statute  of  frauds.  See  Simon  v. 
Motivos,  1  Wm.  Bl.  599,  3  Burr.  1921. 
But  it  is  now  well  settled  that  they  are. 
Ilinde  v.  Whitehousc,  7  East,  558;  Blag- 
den  y.Bradbear,  12  Ves.  46G;  Kenworthy 
V.  Schofield,  2  B.  &  Cr.  945 ;  Brent  v. 
Green,  6  Leigh,  16;  Davis  v.  Kowell,  2 
Pick.  64  ;  Burke  v.  Haley,  2  Gilm.  614. 
It  was  the  doctrine  of  the  early  cases 
that  the  auctioneer's  authority  to  sign 
for  both  vendor  and  purchaser  was  con- 
fined to  sales  of  personal  property. 
Stansfield  v.  Johnson,  1  Esp.  101 ; 
Buckmastcr  v.  Harrop,  7  Ves.  341  ; 
Walker  v.  Constable,  1  B.  &  l\  306. 
But  it  is  now  well  settled  that  he  is  to 
be  regarded  as  the  agent  of  l)oth  par- 
ties equally  in  sales  of  real  and  of  per- 
sonal property.  Coles  i".  Trecothick, 
9  Ves.  234,  249 ;  Emmcrson  v.  Heelis, 
2  Taunt.  38  ;  White  v.  Proctor,  4 
Taunt.  209  ;  Kenworthy  v.  Schofield,  2 
B.  &  Cr.  945 ;  M'Comb  v.  Wright,  4 
Johns.  Ch.  659  ;  Morton  v.  Dean,  13 
Met.  385  ;  Adams  v.  M'Millan,  7  Port. 
73 ;  Meadows  v.  Meadows,  3  M'Cord, 
458 ;  Cleaves  v.  Foss,  4  Greenl.  1  ;  Al- 
na  V.  Plummer,  Id.  258  ;  Anderson  v. 
Chick,  Bail.  Eq.  118.  The  doctrine 
formerly  prevailed  that  sales  of  land  by 
sheriffs,  and  by  masters  in  chancery 
under  decrees  of  the  court,  were  not 
within  the  statute.  Attorney-General 
V.  Day,  1  Ves.  218;  Blagden  v.  Brad- 
bear,  12  Ves.  466;  Tate  v.  Greenlee,  4 
Dev.  149.    But  this  also  has  been  since 


(.s)  Bucker  r.  Cammcyer,  1  Esp.  105;     v.   P.irtridgc,   5   Esp.   256;    Ilindo    v. 
Hicks  V.  Hankin,  4  Esp.  114;  Chapman    "Whitehousc,  7  East,  569;  Hinckley  v. 


CII.  IV.] 


STATUTE    OF   FRAUDS. 


293 


the  purposes  of  the  fourth  and  seventeenth  sections,  the  agent 
may  be  authorized  by  parol;  although  for  the  first  and  third, 


overruled,  and  sales  of  this  description 
arc  now  put  upon  the  same  footing  with 
other  auction  sales.  Simonds  v.  Cat- 
lin,  2  Caines,  61  ;  Jackson  v.  Catlin,  2 
Johns.  248  ;  Ennis  v.  Waller,  3  Blackf. 
472 ;  Robinson  v.  Garth,  6  Ala.  204  ; 
Barney  v.  Patterson,  f>  11.  &  Johns.  182  ; 
Christie  ik  Simpson,  1  Rich.  407 ;  Elfe 
V.  Gadsden,  2  Id.  373 ;  Evans  v.  Ash- 
ley, 8  Missouri,  177  ;  Alexander  v. 
Merry,  9  Id.  514.  —  It  is  to  be  borne  in 
mind  that  the  rule  stated  in  the  text, 
that  an  auctioneer  is  to  be  considered 
the  agent  of  both  parties,  rests  upon  a 
mere  presumption  of  fact,  which  may 
be  rebutted  by  the  particular  circum- 
stances of  the  case.  Thus,  where  a 
party,  to  whom  money  was  due  from 
the  owner  of  goods  sold  by  auction, 
agreed  with  the  owner,  before  the  auc- 
tion, that  the  goods  which  he  might 
purchase  should  be  set  against  the  debt, 
and  he  became  the  purchaser  of  goods, 
and  was  entered  as  such  by  the  auc- 


tioneer, it  was  held  that  he  was  not 
bound  by  the  printed  conditions  of  sale, 
which  specified  that  purchasers  should 
pay  a  part  of  the  price  at  the  time  of 
the  sale,  and  the  rest  on  delivery.  And 
Lord  Denman  said:  —  "No  doubt  an 
auctioneer  maj-  be  agent  for  both  par- 
tics  ;  but  here  the  bargain  was,  that 
what  the  defendant  should  buy  was  to 
be  set  off  against  the  legacy.  We  do 
not  overrule  the  former  cases ;  but  we 
consider  them  inapplicable.  The  auc- 
tioneer is  not  ex  vi  termini  agent  for 
both  parties ;  that  depends  upon  the 
facts  of  the  particular  case."  —  The  auc- 
tioneer's clerk  is  also  regarded  as  the 
agent  of  both  parties.  Bird  v.  Boulter, 
1  Nev.  &  Man.  313  ;  Frost  v.  Hill,  3 
Wend.  386  ;  Smith  v.  Jones,  7  Leigh. 
165;  Hart  v.  Woods,  7  Blackf  568. 
But  see  contra,  Meadows  v.  Meadows,  3 
M'Cord,  458 ;  Entz  v.  Mills,  1  M'lMul- 
lan,  453. 


Arey,  27  Maine,  362.  But  the  broker 
must  be  known  by  the  party  dealing 
with  him  to  be  a  broker,  acting  in  the 
capacity  of  broker,  and  not  as  princi- 
pal. Shaw  V.  Finney,  13  Met.  453.  In 
that  case  one  Hathaway,  a  broker, 
whose  business  was  to  buy  and  sell  fish, 
as  well  for  himself  as  for  otiiers,  was 
authorized  by  the  plaintiffs  to  buy  fish 
for  them,  and  bargained  with  the  de- 
fendant for  a  ((uantity  of  fish,  intending 
to  buy  for  the  plaintiffs,  but  not  inti- 
mating to  the  defendant  that  he  was 
not  buying  for  himself,  and  made  the 
following  written  memorandum  of  the 
bargain  :  "  October  21,  1846.  F.  agrees 
to  sell  II.  his  fare  of  fish,  at  $2.50  per 
quintal,  as  they  lay,  or  to  go  on  flakes 
one  good  day,  at  $2.62^;  and  to  have 
the  refusal  of  them  until  Friday  even- 
ing, 23d  instant."  Hathaway  gave  no- 
tice to  the  defendant,  before  Friday 
evening,  that  he  would  take  the  fish  at 
S2.62|-,  they  to  be  put  on  flakes  one 
good  day:  the  defendant  refused  to  de- 
liver the  fish  to  Hathaway,  and  the 
plaintiffs  brought  this  action  against 
him  for  a  breach  of  the  contract.  Held, 
that  the  case  was  within  the  statute  of 
frauds,  and  that  the  action  could  not  be 
maintained.  And  Wilde,  J.,  said :  — 
25* 


"  It  is  contended  for  the  plaintiffs,  that 
this  was  a  contract  between  them  and 
the  defendant,  and  that,  although  Hath- 
away was  employed  by  the  plaintiffs 
only  as  their  agent,  yet,  when  the  de- 
fendant dealt  with  him,  he  became  his 
agent  also,  and  that  his  memorandum 
of  the  agreement  took  the  case  out  of 

the  statute  of  frauds Cases 

were  cited  from  the  English  authorities, 
as  to  similar  contracts  made  by  brokers ; 
but  these  authorities  are  not  applicable 
to  the  present  case.  A  broker  in  Eng- 
land is  a  known  legal  public  ofiicer,  go- 
verned by  statute  ;  and  those  avIio  deal 
with  him  are  to  find  out  who  his  principals 
are.  He  cannot  act  as  principal  with- 
out violating  his  oath ;  and  he  is  also 
liable  to  a  penalty  if  he  does.  1  Tom- 
lin's  Law  Dictionary,  274.  Hathaway 
was  engaged  in  buying  and  selling  fish, 
as  well  for  himself  as  for  others  ;  and  it 
does  not  distinctlv  appear  whether  this 
purchase  was  made  wholly  for  the  plain- 
tiff's or  not.  But  however  this  may 
have  been,  the  defendant  did  not  deal 
with  Hathaway  as  a  broker  or  agent, 
but  as  the  contracting  jiarty  ;  and  if  the 
defendant  had  himself  signed  the  me- 
morandum, he  would  not  have  been 
liable  in  this  action  by  the  plaintiffs  ; 


294 


THE  LAW   OF   CONTRACTS. 


[part  II. 


which   relate   to   real   property,   his   authority   must   be   in 
writing,  (t) 

As  to  the  question  what  the  written  agreement  must  con- 
tain, the  general  answer  is,  all  that  belongs  essentially  to  the 
agreement,  (u)  and  more  than  this  is  not  needed.     But  much 


(0  Clinan  v.  Cooke,  1  Sch.  &  Lcf.  22 ; 
Coles  V.  Tiecothick,  9  Ves.  250 ;  Mort- 
lock  V.  Buller,  10  Ves.  292;  Graham  v. 
Musson,  7  Scott,  769 ;  Wallci-  v.  Hen- 
don,  2  Eq.  Cas.  Abr.  50,  pi..  26,  Vin. 
Abr.  tit.  Contract  and  Agreement,  (H), 
pi.  45  ;  McWhorter  v.  McMahan,  10 
Paige,  386 ;  Lawrence  v.  Taylor,  5  Hill, 
107  ;  Worrall  v.  Munn,  1  Seld.  229  ; 
Alna  V.  riuramcr,  4  Greenl.  258  ;  John- 
sou  r.  Soraers,  1  Humph.  268. 

(u)  Seagood  v.  Mealc,  Prcc.  in  Ch. 
560;  Rose  v.  Cunynghame,  11  Ves. 
550  ;  Clerk  v.  Wright,  \  Atk.  12 ;  Mon- 
tacute  V  Maxwell,  1  P.  Wms.  618;  Ro- 
berts V.  Tucker,  3  E.xch.  632  ;  Archer 
!•.  Baynes,  5  Exch.  625  ;  Parkhurst  v. 
Van  Cortlandt,  1  Johns.  Ch.  273 ;  Bai- 
ley V.  Ogden,  3  Johns.  399  ;  Waterman 
V.  Meigs,  4  Cush.  497  ;  Morton  v.  Dean, 
13  Met.  385 ;  Burke  v.  Haley,  2  Gilm. 
614 ;  Adams  v.  M'Millan,  7  Port.  73  ; 
Abecl  V.  Radclitf;  13  Johns.  297  ;  Ba- 
rickraan  v.  Kuykcndall,  6  Blackf.  21. — 
It  must  contain  the  names  of  the  parties. 
Champion  v.  Plummer,  5  Esp.  240,  4 
B.  &  P.  253.  In  this  case  the  plaintiff 
had  purchased  of  the  defendant  certain 
merchandise,  which  the  defendant  re- 


fused to  deliver.  The  only  memoran- 
dum of  the  bargain  was  a  short  note 
written  by  the  plaintiff's  clerk  in  a  com- 
mon memorandum  book,  which  was  sign- 
ed by  the  defendant,  l)utmadc  no  mention 
of  the  name  of  the  plaintitT.  And  Maiis- 
Jield,  C.  J.,  said:  —  "How  can  that  be 
said  to  be  a  contract,  or  memorandum 
of  a  contract,  which  does  not  state  who 
are  the  contracting  parties  ?  By  this 
note  it  does  not  at  all  appear  to  whom 
the  goods  were  sold.  It  would  prove  a 
sale  to  any  other  person  as  well  as  to 
the  plaintiff;  there  cannot  be  a  contract 
without  two  parties,  and  it  is  customary 
in  the  course  of  business  to  state  the 
name  of  the  purchaser  as  well  as  of  the 
seller  in  every  bill  of  parcels.  This 
note  does  not  ap])car  to  me  to  amount 
to  any  memorandum  in  writing  of  a 
bargain."  And  sec,  to  the  same  ctTect, 
Wheeler  v.  Collier,  M.  &  Malk.  123; 
Jacob  V.  Kirk,  2  M.  &  Rob.  221 ;  Sher- 
burne V.  Shaw,  1  N.  H.  157;  Webster 
V.  Ela,  5  N.  II.  540  ;  Nichols  v.  Johnson, 
10  Conn.  192.  —  It  must  contain  a  full 
and  complete  description  of  the  subject- 
matter  of  the  contract.  Kay  v.  Curd, 
6  B.  Monr.  100.  In  Nichols  v.  Johnson, 


for  the  contract  was  in  terms  a  con- 
tract with  Ilatliaway."  With  respect 
to  the  entry  of  tlie  broker  in  his  private 
book,  and  the  ])ought  and  sold  notes 
delivered  by  him  to  the  parties,  the  law 
is  not  altogether  settled.  It  seems  to 
be  settled  that  the  bought  and  sold  notes 
constitute  a  sufficient  memorandum, 
without  any  entry  in  the  broker's  book. 
Dickenson  v.  Silwal,  1  Stark.  128; 
Rucker  v,  Cammeyer,  1  Esp.  105 ; 
Chapman  v.  Partridge,  5  Id.  256  ; 
Hawcs  V.  Eorster,  1  M.  &  Rob.  368; 
Goom  V.  Aflalo,  6  B.  &  Cr.  117;  Sive- 
wright  V.  Archibald,  6  Eng.  Law  &  Eq. 
286.  But  for  tliis  purpose  the  bought 
and  sold  notes  must  correspond.  Gum- 
ming V.  Roebuck,  Holt,  N.  P.  172  ; 
Grant  v.  Fletcher,  5  B.  &  Cr.  436; 
Gregson  v.  Ruck,  4  Q.  B.  737  ;  Thorn- 
ton V.  Kcmpster,  5  Taunt.  786 ;  Sivc- 


wright  V.  Archibald,  6  Eng.  Law  &  Eq. 
286;  Peltier  v.  Collins,  3  Wend.  459. 
Where  the  broker  has  made  an  entry  of 
the  contract  in  his  book,  and  has  also 
delivered  bought  and  sold  notes  to  the 
parties,  there  has  been  a  conflict  of  opi- 
nion as  to  whether  the  entry  in  tlie  bro- 
ker's book  or  the  bought  and  sold  notes 
constitute  the  contract.  But  the  Court 
of  Queen's  Bench,  in  the  recent  case  of 
Sivewright  v.  Ai-chibald,  6  Eng.  Law  & 
Eq.  286,  held  that  the  entry  is  in  such 
case  the  binding  contract.  See  further, 
upon  this  point,  Towncnd  ?-.  Drakeford, 
1  Car.  &  Kir.  20;  per  Parle,  B.,  in 
Pitts  V.  Beckett,  13  M.  &  W.  746 ;  Hey- 
man  i'.  Neale,  2  Campb.  337 ;  Thornton 
V.  Charles,  9  M.  &  W.  802 ;  Thornton 
V.  Mcux,  M.  &  Malk.  43;  Uawes  v. 
Forstcr,  1  M.  &  Rob.  368. 


en.  IV.] 


STATUTE   OF  FRAUDS. 


295 


question  has  been  made  whether  the  consideration  is,  in  this 
respect,  an  essential  part  of  the  agreement,  [v)  By  the  early 
decisions  of  the  English  courts,  since  abundantly  confirmed,  it 
was  settled  in  that  country  that  the  consideration  must  be 
expressed,  (iv)     Or,  in  other  words,  that  an  agreement  in 


10  Conn.  193,  '-B.'s  right  in  C.'s 
estate "  was  held  a  sufficient  descrip- 
tion. And  see  the  cases  cited  in  the 
beginning  of  this  note.  —  If  a  price  has 
been  agreed  upon,  that  must  be  stated 
in  the  inemoranduni.  Ehnore  i\  Kings- 
cote,  5  B.  &  Cr.  583  ;  Acebal  v.  Levy, 
10  Bing.  376  ;  Bhigden  v.  Bradbear,  12 
Ves.  466  ;  Smith  r.  Arnold,  5  Mason, 
414;  Ide  v.  Stanton,  15  Verm.  685; 
Adams  v.  M'Millan,  7  Port.  73.  But 
where  a  contract  is  entered  into  without 
any  agreement  as  to  price,  the  memo- 
randum is  sufficient  without  any  speci- 
fication of  price.  Iloadly  v.  M'Laine, 
10  Bing.  482.  So  an  order  for  goods 
"on  moderate  terms,"  is  a  sufficient 
memorandum  within  the  statute  of 
frauds.  Ashcroft  v.  Morrin,  4  M.  &  Gr. 
450. 

{v)  Minet,  Ex  parte,  14  Ves.  189  ; 
Gardom,  Ex  parte,  15  Id.  286;  Morris 
V.  Stacey,  Holt,  N.  P.  153. 

(lu)  Wain  v.  Warlters,  5  East,  10. 
In  this  case  the  defendant  was  sought 
to  be  charged  upon  the  following  un- 
dertaking :  "  Messrs.  Wain  &  Co.  I 
will  engage  to  pay  you  by  half-past  four 
this  day,  tifty-six  pounds  and  expenses 
on  bill  that  amount  on  Hall.  (Signed.) 
Jno.  Warlters."  It  was  objected  by 
the  defendant,  that  though  the  promise, 
which  was  to  pay  the  debt  of  another, 
was  in  writing,  as  required  by  the  sta- 
tute of  frauds,  yet  that  it  did  not  express 
the  consideration  of  the  defendant's  pro- 
mise, which  was  also  required  by  the 
statute  to  be  in  writing ;  and  that  this 
omission  could  not  be  supplied  by  parol 
eyidence ;  and  that  for  want  of  such 
consideration  appearing  upon  the  face 
of  the  written  memoi-andum,  it  stood 
simply  as  an  engagement  to  pay  the 
debt  of  another  without  any  considera- 
tion, and  was  therefore  nudum  paclurn, 
and  void.  And  the  court  were  of  this 
opinion.  Lord  Ellenborough  said :  —  "In 
all  cases  where  by  long  habitual  con- 
struction the  words  of  a  statute  have 
not  received  a  peculiar  interpretation, 
such  as  they  will  allow  of,  I  am  always 
inclined  to  give  to  them  their  natural 


ordinary  signification.  The  clause  in 
question  in  the  statute  of  frauds  has  the 
word  agreement.  And  the  question  is, 
whether  that  word  is  to  be  understood 
in  the  loose,  incorrect  sense  in  which  it 
may  sometimes  be  used,  as  synonymous 
to  promise  or  undertaJcing,  or  in  its  more 
proper  and  correct  sense,  as  signifying 
a  mutual  contract  on  consideration  be- 
tween two'or  more  parties  1  The  latter 
appears  to  me  to  be  the  legal  construc- 
tion of  the  word,  to  which  we  are  bound 
to  give  its  proper  effect;  the  more  so 
when  it  is  considered  by  whom  that  sta- 
tute is  said  to  have  been  drawn,  by  Lord 
Hale,  one  of  the  greatest  judges  who 
ever  sat  in  Westminster  Hall,  who  was 
as  competent  to  express  as  he  was  able 
to  conceive  the  provisions  best  calcu- 
lated for  carrying  into  effect  the  pur- 
poses of  that  law.  The  person  to  be 
charged  for  the  debt  of  another  is  to  be 
charged,  in  the  form  of  the  proceeding 
against  him,  upon  his  special  promise; 
but  without  a  legal  consideration  to  sus- 
tain it,  that  promise  would  be  nudum 
pactum  as  to  him.  The  statute  never 
meant  to  enforce  any  promise  which 
was  before  invalid  merely  because  it 
was  put  in  writing.  The  obligatory 
part  is  indeed  the  promise,  which  will 
account  for  the  word  jtromise  being  used 
in  the  first  part  of  the  clause,  but  still, 
in  order  to  charge  the  party  making  it, 
the  statute  proceeds  to  require  that  the 
agreement,  by  which  must  be  understood 
the  agreement  in  respect  of  ichich  the  pro- 
mise was  made,  must  be  reduced  into 
writing.  And  indeed  it  seems  necessary 
for  effectuating  the  object  of  the  statute 
that  the  consideration  should  be  set 
down  in  writing  as  well  as  the  promise  ; 
for  otherwise  the  consideration  might  be 
illegal,  or  the  promise  might  have  been 
made  upon  a  condition  precedent,  which 
the  party  charged  may  not  afterwards 
be  able  to  prove,  the  omission  of  which 
would  materially  vary  the  promise,  by 
turning  that  into  an  absolute  promise 
which  was  only  a  conditional  one  ;  and 
then  it  would  rest  altogether  on  the 
conscience    of  the  witness    to    assign 


296 


THE   LAW   OF    CONTRACTS. 


[part  II. 


writing,  signed  by  the  parties,  did  not  satisfy  the  require- 
ments of  the  statute,  if  it  set  forth  all  the  promises  of  the 
parties,  but  did  not  state  the  consideration  for  them.  In  this 
country,  it  was  doubted  whether  the  consideration  was  in 
fact  an  essential  part  of  the  agreement ;  and  in  some  States 
the  judicial  decisions  have  not  only  denied  this,  but  the  sta- 
tutes have  expressly  declared  the  statement  of  the  considera- 
tion unnecessary,  (x)     And  if  an  action  be  brought  on  such 


another  consideration  in  the  one  case, 
or  to  drop  the  condition  in  the  other, 
and  thus  to  introduce  the  very  frauds 
and  perjuries  which  it  was  the  object  of 
the  act  to  exclude,  by  requiring  that  the 
agreement  should  be  reduced  into  writ- 
ing, by  which  the  consideration  as  well 
as  the  promise  would  be  rendered  cer- 
tain." This  decision  has  been  sustained 
in  all  the  subsequent  cases  in  England. 
See  Stadt  v.  Lill,  9  East,  348 ;  Lyon  v. 
Lamb,  Fell  on  Guaranties,  App.  No.  3  ; 
Jenkins  v.  Reynolds,  3  Brod.  &  Bing. 
14  ;  Saunders  v.  Wakefield,  4  B.  &  Aid. 
595  ;  Morley  v.  Boothby,  3  Bing.  107  ; 
Cole  V.  Dyer,  1  Cr.  &  Jer.  461  ;  James 
V.  Williams,  3  Nev.  &  Man.  196 ;  Clan- 
cy V.  Piggott,  4  Id.  496  ;  Raikes  v. 
Todd,  8  Ad.  &  El.  846 ;  Sweet  v.  Lee, 
3  M.  &  Gr.  452 ;  Bainbridge  v.  Wade, 
16  Q.  B.  89.  It  will  be  seen  that  the 
above  decisions^depend  upon  the  tech- 
nical meaning  attached  to  the  Avord 
"  agreement."  Therefore,  in  cases  aris- 
ing under  the  seventeenth  section  which 
does  not  contain  the  word  "  agreement," 
it  has  been  lield  that  the  consideration 
need  not  be  expressed.  Egcrton  v.  Ma- 
thews, 6  East,  307.  And  see  per^Wer- 
son,  B.,  in  Marshall  v.  Linn,  6  M.  &  W. 
118. 

(ar)  The  leading  case  in  this  country, 
in  opposition  to  Wain  v.  Warlters,  is 
Packard  v.  Richardson,  17  Mass.  122. 
In  that  case  the  action  was  brought  on 
an  undertaking  of  the  defendants  in- 
dorsed on  a  promissory  note,  and  in  the 
words  following:  "We  acknowledge  our- 
selves to  be  holdcn  as  surety  for  the 
payment  of  the  within  note."  And  the 
defendants  were  held  liable.  Parker, 
C.  J.,  after  stating  that  part  of  the 
fourth  section  of  the  statute  upon  which 
the  question  arose,  said  :  —  "  The  obvi- 
ous purpose  of  the  legislature  would 
seem  to  be,  to  protect  men  from  hasty 
and  inconsiderate    engagements,    they 


receiving  no  beneficial  consideration  ; 
and  against  a  misconstruction  of  their 
words  by  the  testimony  of  witnesses, 
who  would  generally  be  in  the  employ- 
ment and  under  the  influence  of  the 
party  wishing  to  avail  himself  of  such 
engagements.  To  remove  this  mischief, 
the  promise  or  engagement  shall  be  in 
writing  and  signed ;  in  order  that  it 
may  be  a  deliberate  act,  instead  of  the 
effect  of  a  sudden  impulse,  and  may  be 
certain  in  its  proof,  instead  of  depend- 
ing upon  the  loose  memory  or  biased 
recollection  of  a  witness.  The  agree- 
ment shall  be  in  writing  :  what  agree- 
ment ?  The  agreement  to  pay  a  debt, 
which  he  is  under  no  legal  or  moral 
obligation  to  pay,  but  whicli  he  shall 
be  held  to  pay,  if  he  agrees  to  do 
it,  and  signs  such  agreement.  This 
appears  to  be  the  whole  object  and 
design  of  the  legislature ;  and  this 
is  effected  without  a  formal  recog- 
nition of  a  consideration  ;  which,  after 
all,  is  more  of  a  technical  requisition 
than  a  substantial  ingredient  in  this 
sort  of  contracts.  And  it  would  seem 
further,  that  the  legislature  chose  to 
prevent  an  inference  that  the  whole 
contract  or  agreement  must  be  in  writ- 
ing ;  for  it  is  provided  that  some  me- 
morandum or  note  thereof  in  Meriting 
shall  be  sufficient.  What  is  this  but  to 
say,  that  if  it  appear  by  a  written  memo- 
randum or  note,  signed  by  the  party, 
that  he  intended  to  become  answerable 
for  the  debt  of  another,  he  shall  be 
bound,  otherwise  not.  How  then  is  it 
possible,  with  these  expressions  in  the 
statute,  to  insist  upon  a  formal  agree- 
ment, containing  all  the  motives  or  in- 
ducements which  influenced  the  party 
to  become  bound  ?  Yet  sucli  is  the 
decision  of  the  Court  of  King's  Bench  in 
the  case  of  Wain  v,  Warlters."  And  the 
learned  judge  then  proceeded  to  a  mi- 
nute examination  of  the  decided  cases, 


en.  IV.] 


STATUTE   OF   FRAUDS. 


297 


agreement,  the  consideration  may  be  proved  by  extrinsic 
evidence.  In  other  States,  however,  the  English  rule  has 
prevailed ;  (v/)  but  it  has  been  held,  and  is  undoubtedly  the 
prevailing  rule,  that  although  the  consideration  be  not  named 
as  such,  if  it  can  be  distinctly  collected  from  the  whole  instru- 
ment what  it  really  was,  this  satisfies  the  statute,  (c) 

Of  the  form  of  the  agreement,  it  need  only  be  said  that  it 
must  be  adequately  expressive  of  the  intent  and  obligation 
of  the  parties.  It  may  be  on  one  or  many  pieces  of  paper  ; 
provided  that  the  several  pieces  are  so  connected  by  mutual 


and  arrived  at  the  conclusion  that  the 
principle  declared  in  Wain  v.  Warlters 
ought  not  to  be  sanctioned.  See  to  the 
same  crt'ect,  Sage  v.  Wilcox,  6  Conn. 
81  ;  Tufts  V.  Tufts,  3  W.  &  M.  456 ; 
Reed  i'.  Evans,  17  Ohio,  128;  Gillig- 
han  V.  Boardman,  29  Maine,  79.  And 
see  How  v.  Kemball,  2  McLean,  103. 
See  also  Mass.  Rev.  Stat.  eh.  74,  sec.  2. 
In  some  States  also  the  language  of  the 
statute  has  been  changed,  the  word  pro- 
mise or  some  other  word  being  substi- 
tuted for  the  word  agreement.  And 
the  English  doctrine  resting  upon  the 
technical  meaning  of  the  word  agree- 
ment has  consequently  been  repudiated 
in  those  States.  Violctt  v.  Patton,  5 
Cranch,  142;  Taylor  u.  Ross,  3  Ycrg. 
330  ;  Gilraan  v.  Kibler,  5  Humph.  19  ; 
Wren  v.  Pearce,  4  Sm.  &  Marsli.  91. 

(ij)  Sears  v.  Brink,  3  Johns.  210;  Ro- 
gers V.  Kneeland,  10  Wend.  218  ;  Pack- 
er r.  Willson,  15  Id.  343;  Bennett  v. 
Pratt,  4  Denio,  275  ;  Staats  v.  Hewlett, 
Id.  559  ;  Wyman  v.  Gray,  7  H.  &  Johns. 
409  ;  Elliott  v.  Giese,  7  II.  &  Johns.  457. 
Edelen  ;;.  Gough.  5  Gill,  103;  Hender- 
son V.  Johnson,  6  Geo.  390.  And  such 
is  now  the  statute  law  of  New  York. 
Sec  2  Rev.  Stat,  part  2,  cli.  7,  tit.  2, 
sect.  2. 

(2)  Bainbridge  v.  Wade,  1  Eng.  Law 
&  Eq.  236;  Steele  v.  Hoe,  14  Q.  B. 
431  ;  Goldshede  v.  Swan,  1  Exch.  154  ; 
Kennawav  v.  Treleavan,  5  ]\I.  &  W. 
498  ;  Chapman  v.  Sutton,  2  C.  B.  G34  ; 
Haigh  V.  Brooks,  10  Ad.  &  El.  309  ; 
Newbury  v.  Armstrong,  G  Bing.  201  ; 
Shortrede  v.  Cheek,  3  Nov.  &  Man.  866  ; 
Peate  v.  Dlcken,  1  Cr.  M.  &  R.  422 ; 
Lysaght  v.  Walker,  5  Bligh,  N.  S.  1 ; 
Jarvis  v.  Wilkins,  7  M.  &  W.  410  ;  Ro- 


gers V.  Kneeland,  10  Wend.  218,  13 
Wend.  114;  Marquand  v.  Hipper,  12 
Wend.  520 ;  Waterbury  v.  Graham,  4 
Sandf.  215;  Laing  r.  Lee,  1  Spencer, 
337.  In  the  following  cases  the  con- 
sideration did  not  sufficiently  appear. 
Raikes  v.  Todd,  8  Ad.  &  El.  846  ;  James 
V.  Williams,  3  Nev.  &  Man.  196;  Ben- 
tham  V.  Cooper,  5  M.  &  W.  621 ;  Clancy 
V.  Piggott,  4  Nev.  &  Man.  496  ;  Jenkins 
V.  Reynolds,  6  Moore,  86  ;  Hawes  v. 
Armstrong,  1  Scott,  661 ;  Price  v.  Rich- 
ardson, 15  M.  &  W.  539;  Wain  v. 
Warlters,  5  East,  10  ;  Morley  v.  Booth- 
by,  3  Bing.  107  ;  Saunders  v.  Wake- 
field, 4  B.  &  Aid.  595  ;  Jenkins  i?.  Rey- 
nolds, 3  Br.  &  Bing.  14.  The  consider- 
ation may  be  collected  from  the  whole 
instrument,  and  may  be  inferred  from 
its  character  as  well  as  its  terms.  It 
need  not  therefore  be  expressed  in  a 
guaranty  written  upon  a  contempora- 
neous agreement  expressing  a  consider- 
ation ;  for  the  agreement  and  the  gua- 
ranty of  its  performance  being  contem- 
poraneous, the  consideration  for  the  one 
enures  to  and  sustains  the  other.  Bai- 
ley V.  Freeman,  11  Johns,  221.  So  too 
if  the  agreement  upon  which  the  con- 
temporaneous guaranty  is  written  itself 
imports  a  consideration  ;  as  if  it  be  an 
instrument  under  seal,  or  a  promissory 
note.  Leonard  v.  Vredenburgh,  8 
Johns.  29  ;  Manrow  v.  Durham,  3  Ilill, 
584.  The  words  "  value  received " 
have  been  held  sufficiently  to  express  a 
consideration.  Watson  v.  McLaren, 
19  Wend.  557;  Douglass  v.  Howland, 
24  Wend.  35  ;  Edelen  v.  Gough,  5  Gill, 
103.  Where  the  words  import  either  a 
past  or  a  concurrent  consideration,  the 
latter  construction  will  be  given.  Sec 
cases  cited  at  the  beginning  of  this  note. 


298 


THE  LAW   OF   CONTRACTS. 


[part  II. 


reference  or  otherwise  that  there  can  be  no  uncertainty  as  to 
the  meaning  and  effect  of  them  all,  when  taken  together  and 
viewed  as  a  whole,  (a)  But  this  connection  of  several  parts 
cannot  be  established  by  extrinsic  evidence,  {b)  If  there  is 
an  agreement  on  one  paper,  and  something  additional  on 
another,  and  a  signature  on  another  paper,  that  is  not  a 
written  and  signed  agreement,  unless  these  several  parts 
require  by  their  own  statement  the  union  of  the  others  ;  for 
if  they  may  be  read  apart,  or  in  other  connections,  evidence 
is  not  admissible  to  prove  that  they  were  actually  intended 
to  be  read  together.  In  general,  the  written  agreement  must 
be  certain  ;  but  it  may  be  certain  in  itself;  (c)  that  is,  it  may 
itself  declare  the  purposes  and  promises  of  the  agreement 
definitely  ;  or  it  may  be  capable  of  being  made  certain  by 
reference  to  a  certain  standard,  [d)  If  a  contract  be  in  its 
nature  entire,  and  in  one  part,  it  satisfies  the  statute,  and  in 
others  does  not,  then  it  is  altogether  void,  (e)     But  if  these 


(a)  Brettel  v.  Williams,  4  Exch.  623  ; 
Tawncy  v.  Crowther,  3  Bro.  C.  C.  318  ; 
Saunderson  v.  Jackson,  2  B.  «&  P.  238  ; 
Forster  v.  Hale,  3  Sumn,  G96;  Western 
V.  Eussell,  3  Ves.  &  Bea.  188  ;  Allen  v. 
Bennet,  3  Taunt.  169;  Ide  i'.  Stanton, 
15  Verm.  685;  Toomcr  v.  Dawson, 
Cheves,  68. 

(6)  Clinan  v.  Cooke,  1  Sch.  &  Lef. 
22;  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326; 
Ide  V.  Stanton,  15  Verm.  685;  Park- 
hurst  V.  Van  Cortlandt,  1  Johns.  Ch. 
273. 

(c)  Abeel  v.  Eadcliff,  13  Johns.  297; 
Dodge  V.  Lean,  Id.  508 ;  Nichols  v. 
Johnson,  10  Conn.  192. 

((/)  Owen  V.  Thomas,  3  My.  &  K. 
353.  In  this  case,  an  agreement  in 
writing  for  the  sale  of  a  house  did  not 
by  description  ascertain  the  particular 
house,  but  it  referred  to  the  deeds  as 
being  in  the  possession  of  a  person 
named  in  the  agreement.  The  court 
held  the  agreement  sufficiently  certain, 
if  it  could  be  ascertained,  by  an  inquiry 
before  the  master,  that  the  deeds  in  the 
possession  of  the  person  named  referred 
to  the  house  in  question. 

(e)  Cooke  i'.  Tombs,  2  Anstr.  420 ; 
Lea  V.  Barber,  Id.  425,  n  ;  Chater  i\ 
Beckett,  7  T.  K.  201 ;  Vaughan  v.  Han- 
cock, 3  C.  B.  766  ;  Lexington  v.  Clarke, 
2  Vent,  223  :  Mcchelen  v.  Wallace,  7 


Ad.  &  El.  49  ;  Thomas  r.  Williams,  10 
B.  &  Cr.  664;  Loomis  v.  Newhali,  15 
Pick.  159.  In  Irvine  v.  Stone,  6  Cush. 
508,  it  was  held  that  a  contract  for  the 
purchase  of  coals  at  Philadelphia,  and 
to  pay  for  the  freight  of  tlie  same  to 
Boston,  if  void  by  the  statute  of  frauds 
as  to  the  sale,  is  void  also,  and  cannot 
be  enforced,  as  to  the  freight ;  though 
the  latter  part,  if  it  stood  alone,  would 
not  be  within  the  statute.  The  decla- 
ration in  this  case  contained  the  com- 
mon counts,  and  also  a  special  count. 
And  3Ietcal/,  J.,  after  showing  that  the 
plaintiff  could  not  recover  on  the  spe- 
cial count,  on  the  ground  of  variance, 
said  :  —  "  The  remaining  question  is, 
whether  the  good  part  of  the  contract 
before  us  can  be  separated  from  the  bad, 
so  that  the  plaintiff  can  enforce  the 
part  which  is  good,  on  his  general 
counts.  And  wc  are  of  opinion  that, 
from  the  nature  of  the  contract,  tliis 
cannot  be  done.  It  is  in  its  nature  en- 
tire. The  part  which  respects  the  trans- 
portation stands  wholly  on  tiie  other 
part  which  respects  the  sale,  and  wliich 
is  invalid  :  and  both  must  fail  togetlier. 
Tlic  transporting  of  the  coal,  apart 
from  the  sale  of  it,  was  of  no  benefit  to 
tbe  defendants,  and  could  not  have  been 
contcm)>latcd  by  cither  party  as  a  thing 
to  be  paid  for  or  to  be  done,  except  in 


en.  IV.] 


STATUTE   OF   FRAUDS. 


299 


parts  are  severable,  then  it  may  bo  good  in  part  and  void  in 
part.  (/) 


connection  with  the  sale.  The  case 
therefore  does  not  fall  within  the  prin- 
ciple advanced  by  the  counsel  for  the 
plaintiff,  and  sustained  by  the  authori- 
ties. The  i^ood  part  of  the  contract 
cannot  practically  be  severed  from  the 
bad,  and  separately  enforced."  So 
where  an  agreement  was  made  for  the 
sale  by  the  plaintiff  to  the  defendant  of 
the  plaintiff's  crop  of  hemp  then  on 
hand,  and  in  like  manner  his  crops  to 
be  raised  the  two  succeeding  years,  it 
was  held  that  the  whole  contract  came 
within  the  statute  of  frauds,  as  a  con- 
tract not  to  be  performed  within  the 
space  of  one  year ;  and  that  the  part  of 
the  contract  which  related  to  the  crop 
of  hemp  on  hand  could  not  be  severed 
from  the  rest.  So  in  Thayer  v.  Roch, 
13  Wend.  53,  it  was  held  ihat  a  contract 
made  as  well  for  the  sale  of  real  as  of 
personal  property,  which^is  entire,  found- 
ed upon  one  and  the  same  consideration, 
and  is  not  reduced  to  writing,  is  void, 
as  well  in  respect  to  the  personal  as  the 
real  property,  the  subject  of  the  con- 
tract. See  also  ante,  vol.  1,  p.  379. 
And  see  next  note. 

(f)  May  field  v.  Wadsley,  3  B.  &  Cr. 
357.  In  Wood  v.  Benson,  2  Cr.  &  Jer. 
94,  an  action  was  brought  by  the  clerk  of 
the  Manchester  Gas  Works  on  the  follow- 
ing guaranty,  signed  by  the  defendant :  — 
"  I,  the  undersigned,  do  hereby  engage 
to  pay  the  directors  of  the  Manchester 
gas  works,  or  their  collector,  for  all  the 
gas  which  may  be  consumed  in  the  Mi- 
nor Theatre,  and  by  the  lamps  outside 
the  theatre,  during  the  time  it  is  occu- 
pied by  my  brother-in-law,  Mr.  Neville ; 
and  I  do  also  agree  to  pay  for  all  ar- 
rears which  may  be  now  due."  The 
declaration  contained  the  common 
counts.  It  was  objected  by  the  defend- 
ant, 1st,  that  there  was  no  consideration 
apparent  on  the  face  of  the  instrument 
for  the  promise  to  pay  the  arrears  ;  and, 
2d,  that  the  agreement  being  therefore 
void  as  to  part  under  the  statute  of  frauds, 
was  void  as  to  the  whole.  And  in  sup- 
port of  the  second  objection,  he  cited 
Lea  V.  Barber,  Lexington  v.  Clarke, 
Chater  v.  Beckett,  and  Thomas  v.  Wil- 
liams. But  the  objection  was  not  sus- 
tained. Bayley,B.,  said:  — "I  take  it 
to  be  perfectly  clear  that  an  agreement 


may  be  void  as  to  one  part,  and  not  of 
necessity  void  as  to  the  other.  There  are 
many  cases  in  tiie  books  where  a  con- 
tract has  been  held  good'  in  part  and 
bad  in  part.  A  bond  may  be  good, 
though  the  condition  is  good  in  part 
and  illegal  in  part.  I  am  therefore  of 
opinion  that  it  by  no  means  follows 
that,  because  you  cannot  sustain  a  con- 
tract in  the  whole,  you  cannot  sustain 
it  in  part,  provided  your  declaration  be 
so  framed  as  to  meet  the  proof  of  that  part 
of  the  contract  which  is  good.  In  each 
of  the  cases  referred  to  for  the  purpose 
of  showing  that  the  contract,  if  void  in 
part,  was  void  in  ioto,  there  was  a  fail- 
ure of  proof.  The  declaration  in  each 
of  those  cases  stated  the  entire  promise, 
as  well  that  part  which  was  void  as  that 
which  was  good.  I  think,  therefore, 
that  these  cases  are  to  be  supported  on 
the  principle  of  the  failure  of  proof  of 
the  contract  stated  in  the  declaration ; 
but  that  they  do  not  establish  that,  if 
you  can  separate  the  good  part  from  the 
bad,  you  may  not  enforce  such  part  of 
the  contract  as  is  good.  I  am,  there- 
fore, of  opinion  that  the  verdict  must 
stand  for  the  amount  of  the  gas  subse- 
quently supplied."  To  the  same  effect 
is  Rand  v.  Mather,  7  Law  Reporter,  N. 
S.  286,  decided  in  the  Supreme  Judicial 
Court  of  Massachusetts.  That  was  an 
action  for  work  and  labor  on  three 
houses  belonging  to  the  defendant.  The 
plaintiff  began  his  Avork  under  a  con- 
tract with  one  Whiston,  who  was  build- 
ing the  houses  for  the  defendant.  Whis- 
ton failed,  and  the  plaintiff  refused  to 
go  on  with  his  work.  The  defendant 
then  told  the  plaintiff  to  proceed  M'ith 
his  work,  and  he  would  pay  him  for 
what  he  had  done,  as  well  as  for  what 
he  should  do.  The  plaintiff  then  went 
forward  and  finished  his  work.  The 
declaration  contained  the  common 
counts.  It  was  objected  by  the  defend- 
ant that  as  a  part  of  the  contract  was 
clearly  within  the  statute  of  frauds,  the 
whole  must  fail.  But  the  objection 
was  overruled,  and  the  court  held,  in 
conformity  with  Wood  v.  Benson,  that 
the  plaintiff  was  entitled  to  recover  for 
the  work  done  subsequent  to  the  de- 
fendant's promise. 


300  THE  LAW  OF  CONTRACTS.  [PART  II. 

Let  us  now  look  at  the  particular  clauses  of  the  fourth  and 
seventeenth  sections. 

The  first  clause  relates  to  the  promise  of  an  executor  or 
administrator  to  answer  damages  out  of  his  own  estate.  In 
regard  to  this  it  has  been  held,  that  where  an  executor  gives 
a  bond  to  the  judge  of  probate  to  pay  debts  and  legacies, 
this  is  an  admission  of  assets,  and  estops  him  from  denying 
them ;  and  therefore  a  promise  by  him  to  pay  a  debt  of  the 
testator  will  be  taken  to  pay  it  out  of  sufficient  assets,  and 
therefore  not  to  be  a  promise  "  to  answer  damages  out  of 
his  own  estate,"  and  consequently  not  within  the  statute ; 
and  it  need  not  be  in  writing,  (g-)  In  those  States  in  which 
the  written  agreement  or  memorandum  should  contain  the 
consideration,  some  new  consideration  must  be  shown ;  but 
a  very  slight  consideration  suffices. 

There  is  said  to  be  this  difference  between  an  executor  and 
an  administrator.  An  executor  derives  his  title  from  the 
will  of  his  testator,  and  the  office  and  interest  are  completely 
vested  in  him  by  the  testator's  death,  and  his  promise  is 
within  the  statute,  although  made  before  probate  of  the 
will.  But  an  administrator  derives  title  from  the  probate  ; 
and  if  he  make  a  promise  in  expectation  of  administration, 
but  before  the  actual  grant,  this  promise  is  not  within  the 
statute,  although  he  subsequently  becomes  administrator,  [h) 

The  second  clause  relates  to  a  promise  "  to  answer  for 
the  debt,  default,  or  miscarriage  of  another  person."  This 
clause  covers  all  guaranties,  and  is  of  great  importance  in 
reference  to  them.  Its  general  effect  is,  to  make  it  necessary 
that  all  collateral  promises  should  be  in  writing.  The  dis- 
tinction between  those  which  are  collateral  and  those  which 
are  original  has  already  been  considered  ;  and  it  is  sufficient 
to  say  in  this  connection,  that  only  when  the  promise  is  dis- 
tinctly collateral,  is  it  within  this  clause  of  the  statute,  (i) 

(g)  Stebbins  v.  Smith,  4   Pick.   97.  205,     That  was  an  action  on  a  written 

But  see  Silsbee  V.  Ingalls,  10  Id.  526.  instrument    signed  by  the    defendant, 

(A)  Tomlinson  v.  Gill,  Ambl.  330.  whereby  he  agreed  with  the  plaintifi'  to 

(i)  In  the  absence  of  evidence  show-  indemnify  him  for  signing,  togctlier  with 

ing  distinctly  that  a  promise  is  collate-  three   other    persons,   two    promissory 

ral,  it  will  be  treated  as  an  original  pro-  notes  payable  to  the  Bank  of  Rutland, 

mise.     This  point  is  well  illustrated  by  It  appeared  tliat  the  notes  in  question 

the  case  of  Bcaman  n.  Ilussell,  20  Verm,  were  discounted  by  the  Bank  of  Rut- 


en.  IV.] 


STATUTE    OF    FRAUDS. 


301 


Nor  is  it  then  material  whether  the  promise  is  made  before 
or  after  the  delivery  of  the  goods.  (/) 

From  the  very  definition  of  a  collateral  promise,  it  follows 
that  there  must  be  some  one  who  owes  the  debt  directly. 
There  must  exist  an  original  liability,  as  the  foundation  for  the 
collateral  liability.  And  one  of  these  liabilities  must  be  en- 
tirely distinct  from  the  other.  If  therefore  the  creditor  trusted 
to  one  of  the  parties  more  than  to  the  other,  but  did  in  fact 
trust  to  one  together  with  the  other,  it  is  not  within  the  statute. 
And  in  ascertaining  whether  this  original  and  distinct  lia- 
bility exists,  and  then  a  collateral  one  founded  upon  it,  the 
court  will  look  to  the  intention  of  the  parties,  as  they  may 
be  inferred  from  all  the  circumstances  of  the  case  and  of  the 
parties,  (k)     At  the  same  time,  however,  it  must  be  remem- 


land  ;  that  they  were  not  paid  at  matu- 
rity, anil  were  afterwards  paid  by  the 
plaintiff.  It  was  objected  by  the  de- 
fendant that  the  promise  was  within  the 
statute  of  frauds,  as  being  a  collateral 
promise,  and  was  therefore  not  binding, 
because  no  consideration  appeared  on 
the  face  of  the  written  instrument. 
But  the  dejection  was  not  sustained. 
And  Ila/I,  J.,  said,  '•  Although  the  de- 
cisions upon  the  clause  of  the  statute 
relied  upon  by  the  defendant  are  not 
all  reconcilal)le  with  each  other,  yet  it 
seems  agreed  in  all  the  cases,  that  if  the 
promise  is  not  collateral  to  the  liability 
of  some  other  person  to  the  same  party, 
it  is  not  within  the  statute.  Chit,  on 
Cent.  507;  Eastwood  v.  Kenyon,  11 
Ad.  &  El.  438.  In  this  case,  unless 
there  was  some  person  liable  to  indem- 
nify the  plaintiff'  for  signing  the  notes 
to  the  Bank  of  Kutland,  other  than  the 
defendant,  his  undertaking  Avas  an  ori- 
ginal and  not  a  collateral  one.  Does  it 
appear  from  the  writing  offered  in  evi- 
dence, either  in  connection  with  the 
notes  or  without  them,  that  any  other 
person  tlian  the  defendant  was  in  any 
manner  liable  to  the  plaintiff?  If  the 
plaintiff  liad  signed  the  notes  with  the 
other  makers  of  them,  as  their  surety 
and  at  their  request,  the  law  would  have 
implied  a  promise  from  them,  to  indem- 
nify him.  But  there  is  no  evidence 
that  he  signed  as  surety.  For  aught 
that  appears,  the  liability  to  tlie  Bank 
of  Rutland  might  have  been  incurred 
for  the   sole   benefit  of  the  defendant. 


and  he  might  have  agreed  to  indemnify 
the  other  signers  in  the  same  manner 
that  he  did  the  plaintiff.  Besides,  there 
is  no  proof  that  the  plaintiff  signed  the 
note  at  the  request  of  the  other  signers. 
The  writing  shows  that  he  signed  at 
the  request  of  the  defendant,  and  on 
his  promise  to  indemnify  him  ;  and  this 
fact  would  be  calculated  to  rebut  any 
presumption  that  he  signed  at  the  re- 
quest of  the  others,  even  if  his  name 
had  appeared  on  the  notes  as  surety. 
In  the  absence  of  all  evidence  that  there 
was  a  liability  of  any  other  person  to 
the  plaintiff,  to  which  the  defendant's 
promise  could  have  been  collateral,  it 
must  be  treated  as  an  original  pi'omise, 
not  within  the  statute." 

ij)  Matson  v.  Wharam,  2  T.  R.  80  : 
Jones  V.  Cooper,  Cowp.  227  ;  Peckham 
V.  Faria.  3  Doug.  13  ;  Bronson  v.  Stroud, 
2  McMuUan,  372. 

(A)  Keate  v.  Temple,  1  B.  &  P.  158. 
In  this  case  tlie  defendant,  the  first 
lieutenant  of  his  majesty's  ship  the 
Boipie,  applied  to  the  plaintiff",  a  slop- 
seller,  to  furnish  the  crew  with  new 
clothes,  saying  that  he  would  see  him 
paid  at  the  pay  table.  The  plaintiff 
having  supplied  the  clothes,  and  the 
Boijne  having  been  afterwards  burnt  and 
the  crew  dispersed,  tins  action  was 
brought  against  the  defendant  to  re- 
cover the  amount.  The  plaintiff  hav- 
ing obtained  a  verdict  for  576/.  7s.  8cf., 
a  new  trial  was  ordered.  And  Eyre, 
C.  J.,  upon  the  occasion  of  making  the 
rule  for  a  new   trial  absolute,   placed 


VOL.  II. 


26 


302 


THE   LAW   OF   CONTRACTS. 


[part  II. 


bered  that  the  expressions  used  by  the  parties  are  the  first 
and  the  most  direct  evidence  of  their  intention  ;  and  the  pro- 
per effect  and  construction  of  the  various  expressions  used 
in  transactions  of  this  kind  are  well  illustrated  by  Lord 
Holt.  (/) 

It  is  quite  certain,  as  has  been  said,  that  the  party  for 
whom  the  promise  has  been  made  must  be  liable  to  the  party 
to  whom  it  is  made  ;  (m)  and  it  is  eqvially  necessary  that  he 


much  stress  upon  the  fact  that  clothes 
to  so  h\rge  an  amount  were  furnished, 
and  also  upon  the  peculiar  relation  in 
which  the  defendant  stood  to  the  crew. 
"  There  is  one  consideration,"  said  he, 
"  independent  of  every  thing  else,  which 
weighs  so  strongly  with  me,  tliat  I 
should  wish  this  evidence  to  he  once 
more  submitted  to  a  jury.  The  sum 
recovered  is  576/.  7s.  8af.  And  this 
against  a  lieutenant  in  the  navy  ;  a  sum 
so  large  that  it  goes  a  great  way  to- 
wards satisfying  my  mind  that  it  never 
could  have  been  in  the  contemplation 
of  the  defendant  to  make  himself  liable, 
or  of  the  slop-seller  to  funiish  the  goods  on 
his  credit,  to  so  large  an  amount.  I  can 
hardly  think  that  had  the  Boyne  not 
Leen  "burnt,  and  the  plaintiff  been  asked 
whether  he  would  have  the  lieutenant 
or  the  crew  for  his  paymaster,  but  that 
he  would  have  given  the  preference  to 

the  latter From  the  nature 

of  the  case  it  is  appai-ent  that  the  men 
were  to  pay  in  tlae  first  instance  ;  the 
defendants  words  were,  'I  will  see  you 
paid  at  the  pay  table  ;  are  you  satisfied  V 
and  the  answer  then  was,  '  Perfectly  so.' 
The  meaning  of  which  was,  that  how- 
ever unwilling  the  men  might  be  to  pay 
themselves,  the  officer  would  take  care 
that  they  should  pay.  The  question  is, 
whether  the  slop-man  did  not  in  fiict  rely 
on  the  power  of  the  officer  over  the 
fund  out  of  which  the  men's  wages  were 
to  be  paid,  and  did  not  prefer  giving 
credit  to  that  fuad,  rather  than  to  the 
lieutenant,  who,  if  we  are  to  judge  of 
him  by  others  in  the  same  situation, 
was  not  likely  to  be  able  to  raise  so 
large  a  sum."  So  in  the  case  of  Norris 
r.  Spencer,  18  Maine,  324,  the  court 
declare  that  whether  the  contract  of  one 
who  engages  to  be  responsible  for  ano- 
ther, is  to  be  regarded  as  an  original 
and  joint,  or  as  a  collateral  one,  must 
depend  upon  the  intention  of  the  par- 


ties, to  be  ascertained  from  the  nature 
of  it,  and  the  language  used. 

{/)  Watkins  v.  Perkins,  1  Ld.  Raym. 
224.  "If,"  said  he,  "A.  promise  B., 
being  a  surgeon,  that  if  B.  cure  D.  of  a 
wound,  he  will  see  him  paid  ;  this  is 
only  a  promise  to  pay  if  D.  does  not, 
and  tlierefore  it  ought  to  be  in  writing 
by  the  statute  of  frauds.  But  if  A.  pro- 
mise in  such  case  that  he  will  be  B.'s 
paymaster,  whatever  he  shall  deserve, 
it  is  immediately  the  debt  of  A.,  and  he 
is  liable  without  writing.''  And  in  Nor- 
ris f.  Spencer.  18  Maine,  324,  already 
cited,  where  a  written  contract  was 
made  in  form  between  two,  and  signed 
by  the  parties  named,  and  at  the  same 
time  a  third  person  added,  "  I  agree  to 
be  security  for  the  promisor  in  the  above 
contract,"  with  his  signature,  the  latter 
was  held  as  a  joint  promisor. 

(m)  It  is  now  well  settled  that,  in 
order  to  bring  a  promise  within  this 
clause  of  the  statute,  it  must  be  made 
to  the  party  to  whom  the  person  imder- 
taken  for  is  liable.  "  The  statute,"  says 
Parke,  B.,  in  Hargrcaves  v.  Parsons, 
13  M.  &  W.  561,  "  applies  only  to  pro- 
mises made  to  the  persons  to  whom 
another  is  already,  or  is  to  become,  an- 
swerable. It  must  be  a  promise  to  be 
answerable  for  a  debt  of,  or  a  default  in 
some  dutj'  by,  that  other  person  towards 
the  promisee^  A  promise,  therefore,  by 
A.  to  B.  to  pay  a  debt  due  from  B.  to 
C,  is  not  within  the  statute.  This  last 
point  was  first  presented  for  adjudica- 
tion in  Eastwood  i'.  Kenyon,  11  Ad.  & 
El.  438.  Tiie  facts  in  that  case  were 
that  the  plaintiff  was  liable  to  one  Black- 
burn on  a  promissory  note ;  and  the 
defendant  for  a  consideration  promised 
the  plaintiff  to  pay  and  discliarge  the 
note  to  Blackburn.  And  Lord  Deiunan 
said,  "  If  the  promise  had  been  made  to 
Blackburn,  doubtless  tlie  statute  would 
have  applied  ;  it  would  then  Iiavc  been 


CH.  IV.] 


STATUTE   OP   FRAUDS. 


ono 
oU'j 


continue  liable  after  the  making  of  the  promise.     In  other 
words,  the  promise  of  the  party  undertaking  must  not  have 


strictly  a  promise  to  answer  for  the  debt 
of  another ;  and  the  ar<;umcnt  on  tlie 
partoftiie  defendant  is,  that  it  is  not  the 
less  tlie  debt  of  another,  because  the 
promise  is  made  to  that  other,  viz.,  the 
debtor,  and  not  to  the  creditor,  the 
statute  not  havin<^  in  terms  stated  to 
whom  the  promise,  contcmpUxted  l)y  it, 
is  to  be  made.  But  upon  consideration 
we  are  of  opinion  that  tlie  statute  ap- 
plies only  to  promises  made  to  the  per- 
son to  whom  another  is  answerable. 
We  are  not  aware  of  any  case  in  which 
the  point  has  arisen,  or  in  which  any 
attempt  has  been  made  to  put  that  con- 
struction upon  the  statute  which  is  now 
sought  to  be  established,  and  which  we 
think  not  to  be  the  true  one."  And  see, 
to  the  same  effect,  Ilargreaves  v.  Parsons, 
13  M.  &  W.  561  ;  Pratt  v.  Humphrey, 
22  Conn.  317  ;  Barker  v.  Bucklin,  2 
Denio.  45  ;  Westfall  v.  Parsons,  16  Barb. 
645 ;  Preble  v.  Baldwin,  6  Cush.  549. 
And  in  New  York  it  has  been  iield  that 
the  creditor  may  sue  on  such  a  promise 
made  to  his  debtor  on  the  ground  that 
he  is  the  person  for  whose  benefit  the 
contract  is  made.  See  Barker  v.  Buck- 
lin, 2  Denio,  45.  But  see  contra,  Curtis 
V.  Brown,  5  Cush.  488.  It  has  been 
made  a  question,  whether  a  promise  by 
A.  to  indemnify  B.  for  guaranteeing  a 
debt  due  from  C.  to  D.  is  within  the 
statute.  It  is  clear  upon  the  authorities 
already  cited  that  such  a  promise  is  not 
within  the  statute,  as  being  a  promise 
to  answer  for  the  debt  of  C.  For  that 
purpose  it  must  have  been  made  to  D. 
to  whom  the  debt  was  due.  And  upon 
this  ground  it  was  held,  when  the  ques- 
tion was  first  presented  in  Thomas  v. 
Cook.  8  B.  &  C.  728,  that  such  a  pro- 
mise was  not  within  the  statute.  And 
Bayley,  J.,  said,  "  A  promise  to  indem- 
nify does  not,  as  it  a])pears  to  me,  fall 
within  either  the  words  or  tiie  policy  of 
the  statute  of  frauds."  And  see,  to 
the  same  effect,  Jones  v.  Sliorter,  1  Geo. 
294  :  Chapin  v.  Merrill,  4  Wend.  G57. 
But  in  the  more  recent  case  of  Green  v. 
Cresswell,  10  Ad.  &  El.  453,  a  different 
view  was  taken  of  the  question,  namely, 
that  the  person  for  wliom  tlie  guaranty 
is  given  is  under  an  implied  contract  to 
indemnify  his  guarantor,  and  that  A.'s 
promise  to  indemnify  is  collateral  to 
this,  and  therefore  within  the  statute. 
And  the  same  view   was   adopted   in 


Kingsley  v.  Balcome,  4  Barb.  131.  But 
in  otiier  cases  it  is  held  that  such  a  con- 
tract is  not  within  tlie  statute,  even  upon 
this  last  view.  See  Holmes  v.  Knights, 
10  N.  H.  175  J  Dunn  v.  West,  5  B. 
Monr.  37G  ;  Lucas  v.  Chamberlain,  8 
id.  276.  The  question  would  seem  to 
depend  upon  the  time  when  the  pro- 
mise of  C.,  the  person  for  whom  tlic 
guaranty  is  given,  arises.  And  this 
again  will  depend  upon  the  particular 
circumstances  of  the  case.  If  these  are 
such  as  to  authorize  the  inference  that 
C.  made  an  actual  promise  to  indemnify 
his  guarantor  at  the  time  when  the 
undertaking  of  A.  was  given,  or  prior 
thereto,  the  reasonable  presumption  is 
that  the  promise  of  A.  was  intended  to 
be  collateral.  If,  on  the  other  hand, 
there  is  nothing  in  the  case  from  which 
an  actual  promise  by  C.  can  be  inferred, 
and  he  can  only  be  made  liable  on  a 
promise  raised  by  operation  of  law, 
from  B.'s  having  been  compelled  to  pay 
money  on  his  account,  it  would  seem  to 
be  clear  that  the  promise  of  A.  must  be 
original.  For  the  promise  of  C.  arises 
upon  a  subsequent  and  independent 
fact,  after  the  promise  of  A.  has  become 
a  complete  and  valid  contract. — Upon 
the  principle  stated  in  the  text,  it  was  held 
in  Bushell  v.  Beavan,  1  Bing.  N.  C. 
103,  that  a  promise  by  A.  that  B.  should 
guarantee  the  debt  of  C.  was  not  with- 
in the  statute.  In  that  case  tlie  defend- 
ant undertook  that  one  Macqueen  should 
guarantee  to  the  plaintiff  the  payment 
of  certain  freight  due  to  him  under  a 
charter-party  from  one  Lempill.  And 
Tindal,  C.  J.,  said,  "  The  contract  ap- 
pears to  us  not  to  be  a  contract  to  an- 
swer for  the  debt,  default  or  miscarriage 
of  any  other  person,  but  a  new  and  im- 
mediate contract  between  the  defendant 
and  the  plaintiffs.  If  Mr.  Macqueen 
had  signed  the  guaranty,  that  guaranty 
would,  indeed,  have  been  within  the 
statute  of  frauds  ;  for  his  is  an  express 
guaranty  to  be  answerable  for  the  freight 
due  under  the  charter-party,  if  Lempill 
did  not  pay  it.  But  no  person  could  be 
answerable  on  the  promise  to  procure  his 
signature  but  the  defendant.  Lempill  had 
never  engaged  to  get  the  guaranty  of 
Macqueen,  nor  had  Macqueen  engaged 
to  give  it.  There  was,  therefore,  no  de- 
fault of  any  one  for  wiiich  the  defendant 
made  himself  liable  ;  but  he  did  so  sini- 


304 


THE   LAW   OF   CONTRACTS. 


[part  n. 


the  effect,  prior  to  its  performance,  of  discharging  the  party 
originally  liable.  Thus,  if  goods  have  been  furnished  by  B. 
to  C,  and  charged  to  the  latter,  and  A.  now  becomes  respon- 
sible for  them,  and  B.  thereupon  discharges  C,  looking  to  A. 
only,  and  does  this  with  the  knowledge  and  consent  of  the 
parties,  this  promise  of  A.  is  to  be  regarded  as  an  original 
promise  by  way  of  substitution  for  the  promise  of  C.  which 
it  satisfies  and  discharges,  and  not  as  collateral  to  the  pro- 
mise of  C.  (n)  On  the  other  hand,  if  the  liability  of  the 
orio^inal  party  is  to  continue  after  the  performance  of  the 
promise,  the  promise  is  equally  out  of  the  statute.  For  that 
carfnot  properly  be  called  a  promise  to  answer  for  the  debt, 
default  or  miscarriage  of  another  person,  the  performance  of 
which  leaves  the  liability  of  that  other  person  the  same  as 
before,  (o) 


ply  upon  his  own  immediate  contract. 
For  as  to  any  default  of  Lempill  in  pay- 
ing the  freight,  the  action  on  the  under- 
taking of  the  defendant  could  not  be 
dependent  on  that  event ;  for  it  would 
have  been  maintainable  if  the  guaranty 
were  not  signed  at  any  time  after  the 
day  on  which  the  defendant  engaged  it 
should  be  given,  that  is,  long  before  the 
time  when  the  freight  became  payable." 
The  same  principle  was  applied  in  Jar- 
main  V.  Algar,  2  C.  &  P.  249.  There 
the  defendant  promised  to  execute  a 
bail  bond  in  an  action  by  the  plaintitF 
against  one  Flack,  in  consideration  that 
the  plaintiff  would  not  cause  FUick  to 
be  arrested.  The  defendant's  promise 
was  held  not  to  be  within  the  statute, 
because  Flack,  the  person  undertaken 
for,  was  not  liable.  It  should  be  observ- 
ed, however,  tlu\t  Mr.  Justice  Coicen,  in 
Carville  v.  Crane,  5  Hill,  483,  was  of 
opinion  that  these  two  cases  proceeded 
upon  too  literal  a  construction  of  the 
statute. 

(n)  Thus,  where  the  defendant  pro- 
mised to  pay  the  debt  of  his  son,  who 
was  in  custody  on  an  execution  at  the 
suit  of  the  plaintiff,  in  consideration  of 
his  son's  being  discharged  out  of  custody 
with  the  plaintiff's  consent,  it  was  held 
that  the  promise  was  not  within  the 
statute,  because  by  such  discharge  the 
debt  of  the  son  was  extinguished.  So 
in  Curtis  v.  Brown,  .5  Cush.  488,  492, 
S/ian;  C.  J.,  says,  "  Wlien,  by  the  new 
promise,  tiic  old  debt  is  extinguished, 


the  promise  is  not  within  the  statute  ;  it 
is  not  then  a  promise  to  pay  the  debt  of 
another,  which  has  accrued,  but  it  is  an 
original  contract,  on  good  consideration, 
and  need  not  be  in  writing."  And  see, 
to  the  same  effect,  Bird  v.  Gammon, 
3  Bing.  N.  C.  883;  Butcher  r.  Stewart, 
11  M.  &  W.  857  ;  Decker  r.  Shaffer,  3 
Ind.  187;  Emerick*f.  Sanders,  1  Wis- 
con.  77  ;  Draughan  v.  Bunting,  9  Ired. 
10;  Stanly  v.  Hendricks,  13  id.  86; 
Bason  v.  Hughart,  2  Texas,  477.  And 
see  also  ante,  vol.  1,  pp.  188,  191. 

(o)  Stephens  v.  Squire,  5  Mod.  205 ; 
Comb.  362.  In  this  case  it  appeared 
that  an  action  had  been  brought  against 
the  defendant,  an  attorney,  and  two 
others,  for  appearing  for  the  plaintiff 
without  a  warrant.  The  cause  was  car- 
ried down  to  be  tried  at  the  assizes ; 
and  the  defendant  promised,  in  consi- 
deration the  plaintifif  would  not  prose- 
cute the  action,  that  lie  would  ])ay  ten 
pounds  and  costs  of  suit.  And  now  an 
action  was  brouglit  against  tlic  defend- 
ant upon  this  promise.  Sir  Bartho- 
lomew Shoirer,  for  the  defendant,  object- 
ed that  the  promise  was  within  the 
statute.  Holt,  C.  J.,  "No,  'tis  an  ori- 
ginal promise,  and  himself  was  liable." 
S/ioirer,  "What  if  himself  had  not  been 
a  party,  then  it  were  plainly  within  the 
statute."  Ilolt,  C.  J.,  "  Put  that  case 
when  it  comes;  but  if  A.  saith,  do  not 
go  on  against  B.  &c.,  this  being  to  be 
performed  within  a  year,  it  will  bind 
liim  ;  'tis  like  the  case  of  buying  goods 


en.  IV.] 


STATUTE    OF   FRAUDS. 


305 


So,  if  the  debt  for  which  one  engages  to  answer,  is  to  be 
kept  alive,  but  to  be  held  for  the  benefit  of  the  guarantor,  the 
case  is  out  of  the  statute.  Thus,  where  one  purchases  the 
debt  of  another  by  his  own  promise,  as  if  A.  promised  to  pay 
B.  a  thousand  dollars  in  three  months,  and  thereupon  B.  trans- 
ferred to  him  C.'s  debt  to  B.  for  twelve  hundred  dollars,  pay- 
able in  a  year,  this  certainly  is  a  purchase  of  a  debt,  and  not 
a  promise  to  pay  the  debt  of  another,  (p) 

It  may  indeed  be  stated,  as  a  general  rule,  that  wherever 
the  main  purpose  and  object  of  the  promissor  is  not  to 
answer  for  another,  but  to  subserve  some  purpose  of  his 
own,  his  promise  is  not  within  the  statute,  although  it  may 
be  in  form  a  promise  to  pay  the  debt  of  another,  and  although 
the  performance  of  it  may  incidentally  have  the  effect  of 
extinguishing  the  liability  of  another,  (q)     There  are  several 


for  another  man,  whicli  is  every  clay's 
practice.  But  if  A.  saith,  do  not  go  on 
against  B.  and  I'll  give  you  ten  pounds 
in  fall  satisfaction  of  that  action,  that 
might  be  within  tlie  statute  ;  but  here 
he  appears  to  be  a  party  concerned  in 
the  former  action."  It  will  be  seen  that 
one  of  the  grounds  upon  which  his  lord- 
ship thought  the  case  to  be  out  of  the 
statute,  was  that  the  defendant  was  one 
of  the  parties  originally  liable.  This 
position  will  be  noticed  hereafter.  But 
he  was  also  of  opinion  that  the  case 
would  have  been  out  of  the  statute, 
though  the  defendant  had  not  been  con- 
cerned in  the  former  action,  for  the  rea- 
son that  it  did  not  appear  that  the  ten 
pounds  were  to  be  paid  in  satisfaction. 
In  other  words  the  liability  of  the  origi- 
nal party  would  have  still  continued, 
notwithstanding  the  performance  of  the 
defendant's  promise.  This  is  also,  we 
think,  the  true  ground  of  the  decision  in 
Eead  v.  Nash,  1  Wil.  30.5.  It  there 
appeared  that  one  Tuack,  the  plaintiff's 
testator,  had  brought  an  action  of  as- 
sault and  battery  against  one  Johnson. 
The  cause  being  at  issue,  the  record  en- 
tered, and  just  coming  on  to  be  tried, 
the  defendant  Nash,  being  then  present 
in  court,  in  consideration  that  Tuack 
woulil  not  ])rocced  to  trial,  but  would 
withdraw  his  record,  promised  to  pay 
hini  ilCty  pounds  and  costs.  It  was  held 
that  the  defendant's  promise  was  out  of 
the  statute.    It  has  sometimes  been  sup- 

2G* 


posed  that  the  judgment  of  the  court  in 
this  case  proceeded  upon  the  ground 
that  a  promise  to  answer  for  a  tort  com- 
mitted by  another  was  not  within  the 
statute.  And  some  of  the  language 
attributed  to  the  Lord  Chief  Justice 
would  seem  to  justify  this  opinion.  But 
so  far  as  the  decision  was  based  upon 
this  ground,  it  cannot  now  be  regarded 
as  law,  as  we  shall  hereafter  show. 

(/))  Thus,  where  A.  being  insolvent, 
a  verbal  agreement  was  entered  into 
between  several  of  his  creditors  and  B., 
whereby  B.  agreed  to  pay  the  creditors 
10s.  in  the  pound,  in  satisf'action  of  their 
debts,  which  they  agreed  to  accept,  and 
to  assign  their  debts  to  B. ;  —  it  Avas 
held,  that  this  agreement  was  not  within 
the  statute  of  frauds,  not  being  a  colla- 
teral promise  to  pay  the  debt  of  another, 
but  an  original  contract  to  purchase  the 
debts.  Anstey  v.  Harden,  4  B.  &  P. 
124. 

(q)  This  rule  is  very  clearly  stated 
and  fully  illustrated  by  Shaw,  C.  J.,  in 
Nelson  V.  Boynton,  3  Mete.  39G.  He 
there  says,  "  Tiie  terms  original  and 
collateral  promise,  though  not  used  ia 
the  statute,  arc  convenient  enough  to 
distinguish  between  the  cases,  where  the 
direct  and  leading  object  of  the  promise 
is,  to  become  the  surety  or  guarantor  of 
another's  debt,  and  those  where,  although 
the  effect  of  the  promise  is  to  pay  the 
debt  of  another,  yet  the  leading  object 
of  the  undertaker  is,  to  subserve  or  pro- 


306 


THE   LAW   OF   CONTRACTS. 


[part  n. 


classes  of  cases  which  may  perhaps  be  more  satisfactorily 
explained  upon  this  principle  than  upon  any  other.  Thus, 
if  a  creditor  has  a  lien  on  certain  property  of  his  debtor  to 
the  amount  of  his  debt,  and  a  third  person,  who  also  has  an 
interest  in  the  same  property,  promises  the  creditor  to  pay 
the  debt  in  consideration  of  the  creditor's  relinquishing  his 
lien,  this  promise  is  not  within  the  statute,  (r)  The  per- 
formance of  the  promise,  it  is  true,  will  have  the  effect  of 
discharging  the  original  debtor  ;  but  there  is  no  reason  to  sup- 
pose that  this  constituted,  in  any  degree,  the  inducement  to 
the  promise,  or  was  at  all  in  the  contemplation  of  the  pro- 
misor. So  if  A.,  who  is  indebted  to  B.,  assigns  to  him  in 
payment  a  debt  due  to  himself  from  C,  with  a  guaranty  that 
C.  shall  pay  it  to  B.  when  it  becomes  due,  the  transaction 
is  not  within  the  statute.  For  although  the  undertaking 
of  A.  is  in  form  a  promise  to  answer  for  the  debt  of  another, 
his  object  is  merely  to  pay  a  debt  of  his  own  in  a  particular 
way.  (s)     So  if  one  of  several  persons,  who  are  liable  jointly 


mote  some  interest  or  purpose  of  liis 
own.  The  former,  whether  made  be- 
fore, or  after,  or  at  the  same  time  with 
the  promise  of  the  principal,  is  not  valid, 
unless  manifested  by  evidence  in  writ- 
ing ;  the  latter,  if  made  on  good  consi- 
deration, is  unaifected  by  the  statute, 
because,  although  the  effect  of  it  is  to 
release  or  suspend  the  debt  of  another, 
yet  that  is  not  the  leading  object  on  the 
part  of  the  promissor." 

(r)  The  leading  case  upon  this  point 
is  Williams  v.  Ijcper,  3  Burr.  1886. 
There  one  Taylor,  a  tenant  to  the 
plaintiff,  being  in  arrcar  for  rent,  and 
insolvent,  conveyed  all  his  effects  for 
the  benefit  of  his  creditors.  They  em- 
ployed the  defendant,  as  a  broker,  to  sell 
the  effects;  and  accordingly  he  adver- 
tised a  sale.  On  the  morning  of  the 
sale  the  plaintiff  came  to  distrain  the 
goods  in  the  house ;  whereupon  the 
defendant  promised  to  pay  the  arrcar 
of  rent,  if  he  would  desist  from  distrain- 
ing ;  and  he  did  thereupon  desist.  Upon 
these  facts  the  court  held  that  the  de- 
fendant's promise  was  not  witliin  the 
statute.  To  the  same  effect  is  IIoul- 
ditcli  V.  Milne,  3  Esp.  86.  There  the 
plaintiff  had  in  his  possession  certain 
carriages  belonging  to  one  Copcy,  upon 
which  he  had  a  lien  for  repairs.     The 


defendant,  in  consideration  that  the 
plaintiff  would  relinquish  his  lien,  and 
give  up  the  carriages  to  him,  promised 
to  pay  the  plaintiff'  the  amount  due 
him.  And  Lord  Eklon  held  the  case  to 
be  out  of  the  statute,  on  the  principle 
established  by  Williams  v.  Leper.  And 
see  further,  Barrell  v.  Trusscll,  4  Taunt. 
117;  Slingerland  v.  Morse,  7  John.  463  ; 
Hindman  v.  Langford,  3  Strobh.  207 ; 
Blount  V.  Hawkins,  19  Ala.  100  ;  Allen 
V.  Thompson,  10  N.  H.  32,  cited  ante', 
vol.  1,  p.  497,  n.  (s)  ;  Randle  v.  Harris, 
6  Yerg.  508,  cited  ante,  vol.  1,  p.  498, 
n.  (m). 

(s)  Thus,  in  Johnson  v.  Gilbert,  4 
Hill,  178,  the  defendant,  being  indebted 
to  one  Sherwood  in  the  sura  of  twenty- 
five  dollars,  the  plaintiff,  at  the  defend- 
ant's request,  paid  that  debt,  in  consi- 
deration whereof  the  defendant  trans- 
ferred to  the  plaintiff  the  note  of  one 
Eastman,  payable  to  himself.  The 
defendant  also  endorsed  upon  the  note 
a  guaranty  that  it  would  be  paid  ;  and 
upon  this  guaranty  the  action  was 
brought.  It  was  held  that  the  case  was 
not  within  the  statute  of  frauds.  Bron- 
soii,  J.,  said,  "  The  statute  of  frauds 
has  nothing  to  do  with  the  case.  That 
only  applies  where  the  ])erson  making 
the  promise  stands  in  the  relation  of  a 


en.  IV.]  STATUTE    OF   FRAUDS,  307 

or  severally,  for  the  payment  of  the  same  debt,  promises  the 
creditor  to  pay  the  debt,  this  is  not  a  case  within  the  statute;  for 
although  the  performance  of  the  promise  will  have  the  effect 
of  discharging  others,  it  is  to  be  presumed  that  the  thing  in 
the  contemplation  of  the  promisor  was  his  own  discharge. 
Thus,  in  the  case  of  a  bill  of  exchange  for  which  several  per- 
sons arc  liable,  if  it  be  agreed  to  be  taken  up  and  paid  by 
one,  eventually  others  may  be  discharged  ;  but  the  moving 
consideration  is  the  discharge  of  the  party  himself,  and  not  of 
the  rest,  though  that  also  ensues,  (t)  Again,  it  is  now  well 
settled  that  the  guaranty  of  a  factor  selling  upon  a  del  credere 
commission,  is  not  within  the  statute.  This  may  be  referred 
to  the  same  principle.  Although  such  a  contract  "  may 
terminate  in  a  liability  to  pay  the  debt  of  another,  that  is 
not  the  immediate  object  for  which  the  consideration  is 
given."  {u) 

It  may  be  further  stated  that  this  clause  of  the  statute 
does  not  embrace  cases  in  which  the  liability  to  pay  the  debt 
of  another  arises,  by  operation  of  law,  out  of  some  transac- 
tion between  the  parties,  without  the  aid  of  any  special  pro- 
mise. Thus,  if  A.,  who  is  indebted  to  B.,  sends  money  to 
C.  to  pay  the  debt,  and  C.  accepts  the  trust,  he  thereby  be- 

surcty  for  some  third  person,  who  is  the  defendant's  undertaking;  and  make  it 
principal  debtor.  Tiiis  was  not  an  un-  a  case  of  suretyship  within  the  statute 
dertaking  by  the  defendant  to  pay  the  of  frauds."  The  same  point  was  de- 
debt  of  Eastman  ;  but  it  was  an  agree-  cided  by  the  New  York  Court  of  Ap- 
ment  to  pay  his  own  debt  in  a  particular  peals,  in  Brown  v.  Curtiss,  2  Comst.  225 ; 
way.  The  plaintitf  had,  upon  request,  and  Durham  v.  Manrow,  id.  533.  It  is 
paid  a  debt  of  twenty-five  dollars,  which  to  be  observed  also  that  cases  of  this 
the  defendant  owed  to  Sherwood,  and  description  arc  out  of  the  statute,  upon 
had  thus  made  himself  a  creditor  of  the  the  principle  established  by  Eastwood 
defendant  to  that  amount.  If  the  mat-  v.  Kenyon,  11  Ad.  &  El.  438,  and  Bar- 
ter had  not  been  otherwise  arranged,  greaves  v.  Parsons,  13  M.  &  W.  561. 
the  plaintiff  might  have  sued   the  de-  Sec  supra,  n.  (?«). 

fendant,  and  recovered  as  for  so  much  (t)  Per  Lord  iHlcnboroiyh,  in  CaatYmg 

money  paid  for  him  on  request.     But  v.  Aubert,  2  East.  325.     And  see  Files 

the  plaintiff  agreed  to  accept  payment  v.  McLeod,  14  Ala.  611.    Andscc  supra, 

in  a  different  way,  to  wit,  by  the  transfer  n.  (o). 

ofEastman's  note  for  the  woodwork  of  a  (u)    Per   Parke,  B.,  in    Couturier  i'. 

wagon,  with  the  defendant's  undertak-  Hastie,    16   Eng.  Law  &  Eq.  562.     It 

ing  that  the  note  should  be  paid.     The  was  declared  by  the  Court  of  Exchc- 

defcndant,  instead  of  promising  that  he  qucr  in  this  case  that  such  a  contract  is 

would  pay  himself,  agreed  that  East-  not  within  the  statute.     Such  may  now, 

man  should   pay.     He  might  do  that,  therefore,  be  considered  as  tlie  settled 

whether  Eastman  was  his  debtor  or  not ;  doctrine  in  the  English  and  American 

and  the  fact  that  Eastman  was  a  debtor,  law.     See  ante,  vol.  1,  p.  79,  n.  (;(),  and 

does  not  change  the  character  of  the  p.  500,  n.  (w). 


308 


THE  LAW   OF   CONTRACTS. 


[part  II. 


comes  liable  to  B.  for  the  debt  of  A.  (v)  So  if  property  is 
delivered  to  B.  clothed  with  a  trust  for  the  payment  of  the 
debt  of  C,  and  B.  consents  to  receive  the  property  subject  to 
the  trust,  he  thereby  becomes  liable  to  pay  the  debt,  (w)     But 


(f)  Wyman  v.  Smith,  2  Sandf.  331. 
And  sec  Stocking  v.  Sage,  1  Conn. 
519. 

(«,•)  Drakcley  v.  Deforest,  3  Conn. 
272.  This  was  one  of  tlie  grounds  upon 
which  Williams  v.  Leper,  3  Burr.  188G, 
was  decided.  For  the  facts  of  the  case 
see  suj>ra,  n.  (r).  The  plaintiff  had  a 
lien  upon  the  goods  of  his  debtor  for 
the  pavnient  of  his  debt;  and  the  de- 
fendant, in  consideration  that  the  plain- 
tiff would  relinquish  the  goods  to  iiim, 
consented  to  receive  them  subject  to  the 
lien.  Lord  Mansfield,  in  delivering  his 
opinion,  said,  "  This  case  has  nothing 
to  do  with  the  statute  of  frauds.  The 
res  gesta  would  entitle  the  plaintiff  to 
his  action  against  the  defendant.  Tiie 
landlord  had  a  legal  pledge.  He  enters 
to  distrain ;  he  has  the  pledge  in  his 
custody.  The  defendant  agrees  that 
the  goods  shall  be  sold,  and  the  plaintiff 
paid  in  the  first  place.  The  goods  are 
Xhc  fund.  The  question  is  not  between 
Taylor  and  the  plaintiff.  The  plaintiff 
had  a  lien  upon  the  goods.  Leper  was  a 
trustee  for  all  the  creditors  ;  and  was 
obliged  to  pay  the  landlord,  who  had 
the  prior  lien.  This  has  nothing  to  do 
with  the  statute  of  frauds."  And  Wil- 
mot,  J.,  said,  "  Leper  became  the  bailiff' 
of  the  landlord  ;  and  when  he  had  sold 
the  goods,  the  money  was  the  landlord's 
(as  far  as  45/.)  in  his  own  bailiff's  hands. 
Therefore  an  action  would  have  lain 
against  Leper  for  money  had  and  re- 
ceived to  the  plaintiff's  use."  The  prin- 
ciple was  stated  still  more  pointedl}'  by 
Ast07i,  J.,  who  concurred  with  the  rest 
of  the  court  upon  this  ground  alone. 
He  said,  "I  look  upon  the  goods  here 
to  be  the  debtor ;  and  I  think  that 
Leper  was  not  bound  to  pay  the  land- 
lord more  than  the  goods  sold  for,  in 
case  they  had  not  sold  for  45/.  The 
goods  were  nfund  hclireen  both  ;  and  on 
that  foot  I  concur."  The  case  of  Cast- 
ling V.  Auburt,  2  East,  325,  proceeded 
upon  the  same  ground.  There  the 
plaintiff  held  certain  policies  of  insur- 
ance wliirh  he  had  effected,  as  an  insur- 
ance broker,  for  the  use  of  one  Grayson, 
and  upon  tlie  faith  of  which  he  iiad  ac- 
cepted bills  for  Grayson's  accommoda- 


tion. A  loss  having  happened  on  the 
policies  in  question,  and  the  defendant, 
who  was  Grayson's  agent,  wishing  to 
obtain  possession  of  the  policies,  in  order 
to  receive  the  amount  of  the  loss  from 
the  underwriters,  promised,  in  consider- 
ation that  the  plaintiff  would  deliver  to 
him  the  policies,  to  provide  funds  for 
the  payment  of  the  plaintiff's  accept- 
ances. The  policies  were  accordingly 
delivered  to  the  defendant,  who  received 
from  the  underwriters  more  than  suffi- 
cient to  cover  the  plaintift''s  acceptances. 
Upon  these  facts  the  court  held  the  de- 
fendant liable.  And  Le  Blanc,  J.,  said, 
"  This  is  a  case  where  one  man  having 
a  fund  in  his  hands  which  was  adequate 
to  the  discharge  of  certain  incumbrances ; 
another  party  undertook  that  if  that  fund 
were  delivered  up  to  him,  he  would  take 
it  with  the  incumbrances  ;  this,  therefore, 
has  no  relation  to  the  statute  of  frauds." 
It  would  seem  that  some  of  the  judges 
held  the  defendant  liable  also  upon  his 
special  promise,  upon  the  other  principle 
established  by  Williams  r.  Leper,  name- 
ly, that  the  main  purpose  and  object  of 
the  defendant  in  making  the  promise, 
was  not  to  pay  the  debt  of  Grayson, 
but  to  subserve  a  purpose  of  his  own, 
namely,  to  get  possession  of  the  poli- 
cies. See  supra.  But  if  the  facts  are 
correctly  reported,  it  would  seem  diffi- 
cult to  sustain  the  decision  upon  this 
ground.  For  it  appears  that  the  de- 
fendant was  acting  as  Grayson's  agent, 
and  that  he  received  the  j)olicies  on 
Grayson's  account  and  for  feis  benefit. 
The  consideration  of  the  promise,  there- 
fore, enured  entirely  to  the  benefit  of 
Grayson ;  and  the  case,  in  this  view, 
would  seem  to  come  within  the  decision 
in  Nelson  v.  Boynton,  3  Met.  396, 
where  it  was  held  that  a  promise  to  pay 
the  note  of  a  third  person,  which  was  in 
suit  and  secured  by  an  attachment  of 
his  property,  in  consideration  of  the 
holder's  discontinuing  the  suit  and  relin- 
quishing his  attachment,  was  wiiliin  the 
statute.  It  is  to  be  ol)Served,  however, 
that  some  of  the  language  attributed  to 
Lord  FAlcnliorongh  would  seem  to  indi- 
cate that  the  defendant's  name  was  on 
bills  accepted  by  the  plaintiff,  and  tliat 


CH.  IV.] 


STATUTE   OF  FRAUDS. 


309 


in  cases  falling  within  this  principle,  it  is  obvious  that  the 
party  accepting  the  trust  can  be  made  liable  only  to  the 
extent  of  the  value  of  the  property  received,  and  for  debts, 
with  the  payment  of  which  the  property Js  charged,  (x) 

It  has  been  made  a  question  whether  the  words  "debt, 
default  or  miscarriage,"  extend  to  a  liability  for  a  mere  tort. 
But  it  is  now  well  settled  that  they  do.  (7/) 

Of  the  third  clause  in  this  section,  which  declares  that  "  no 


his  object,  therefore,  in  undertaking  to 
provide  funds  for  their  payment,  was 
his  own  discharf;:c.  Thus,  his  lordship 
said  that  the  defendant,  in  making  the 
promise,  "  had  not  the  discharge  of 
Grayson  principally  in  his  contempla- 
tion, but  the  discharge  of  himself.  That 
was  his  moving  consideration,  though 
the  discharge  of  Grayson  would  even- 
tually follow."  If  we  may  infer  from 
this  that  the  defendant  was  liable  on  the 
bills,  the  case  is  relieved  from  all  diffi- 
culty. See  supra,  p.  305,  n.  (7).  See 
in  further  illustration  of  the  principal 
stated  in  the  text,  Edwards  v.  Kelly, 
6  M.  &  S.  204.  There,  the  plaintiff, 
for  rent-arrear,  having  distrained  goods 
which  the  tenant  was  about  to  sell, 
agreed  with  the  defendants  to  deliver 
up  the  goods,  and  to  permit  them  to  be 
sold  by  one  of  the  defendants  for  the 
tenant,  upon  the  defendants'  jointly  un- 
dertaking to  pay  the  plaintiff  the  rent 
due  ;  and  the  goods  were  accordingly 
delivered  to  the  defendants.  Held,  that 
the  case  was  not  within  the  statute. 
And  Lord  Ellenboroufjh  said,  "  Perhaps 
this  case  might  be  distinguished  from 
that  of  Williams  v.  Leper,  if  the  goods 
distrained  had  not  been  delivered  up  to 
the  defendants.  But  here  was  a  de- 
livery to  them  in  trust,  in  effect,  to 
raise  by  sale  of  the  goods  sufficient  to 
satisfy  the  plaintiff's  demand ;  the  goods 
were  put  into  their  possession  subject  to 
this  trust.  So  that  in  substance  this 
was  an  undertaking  by  the  defendants 
that  the  fund  should  be  available  for 
the  purpose  of  liquidating  the  arrears 
of  rent."  And  see  Bampton  v.  Pauliu, 
4  Bing.  264. 

(x)  Sec  Thomas  v.  Williams,  10  B. 
&  Cr.  664. 

(y)  The  case  of  Read  v.  Nash,  1  Wil. 
30.5  ;  for  some  time  gave  countenance 
to  a  contrary  opinion.     But   the   doc- 


trine stated  in  the  text  was  clearly 
established  by  Kirkham  v.  Marter,  2 
B.  &  Aid.  613.  There,  one  T.  E. 
Marter  had  wrongfully  and  without 
the  license  of  the  plaintiff,  ridden  the 
plaintiff's  horse,  and  thereby  caused  its 
death.  Held,  that  a  promise  by  the  de- 
fendant to  pay  the  damages  thereby 
sustained,  in  consideration  that  the 
plaintiff  would  not  bring  any  action 
against  the  said  T.  E.  Marter,  was 
within  the  statute  of  frauds,  and  must 
be  in  writing.  And  per  Abbott,  C.  J., 
"The  word  'miscarriage'  has  not  the 
same  meaning  as  the  word  '  debt,'  or 
'  default ; '  it  seems  to  me  to  compre- 
hend that  species  of  wrongful  act,  for 
the  consequences  of  wliich  the  law 
would  make  the  party  civilly  respon- 
sible. The  wrongful  riding  the  horse 
of  another,  without  his  leave  and  license, 
and  thereby  causing  his  death,  is  clearly 
an  act  for  which  the  party  is  responsible 
in  damages  ;  and,  therefore,  in  my  judg- 
ment, falls  within  the  meaning  of  the 
word  '  miscarriage."  "  Ilolroyd,  J.,  "  I 
think  the  term  miscarriage  is  more  i)ro- 
perly  applicable  to  a  ground  of  action 
founded  upon  a  tort,  than  to  one  founded 
upon  a  contract ;  for  in  the  latter  case 
the  ground  of  action  is,  tliat  the  party 
has  not  performed  what  he  agreed  to 
perform ;  not  that  he  has  misconducted 
himself  in  some  matter  for  which  by 
law  he  is  liable."  And  I  think  that 
both  the  words  miscarriage  and  defaidt 
apply  to  a  promise  to  answer  for  ano- 
ther with  respect  to  the  non-perform- 
ance of  a  duty,  though  not  founded  up- 
on a  contract."  Best,  J.,  "  The  question 
is,  whether  the  words  of  the  act  are 
large  enough  to  embrace  this  case. 
There  is  nothing  to  restrain  these  words, 
default  or  miscarriage;  and  it  apjjcars  to 
me  that  each  of  them  is  large  enough 
to  comprehend  this  case."  And  sec 
Turner  v.  Hubbell,  2  Day,  457. 


310  THE  LAW   OF   CONTRACTS.  [PART   II. 

action  shall  be  brought  upon  any  agreement  made  in  con- 
sideration of  marriage,  unless, "  &c.  it  has  already  been  said, 
that  promises  to  marry  are  not  within  the  statute,  (z)  But 
all  promises  in  the  nature  of  settlement,  advancement,'  or 
provision  in  view  of  marriage,  are  within  the  statute,  and  must 
be  in  writing,  (a)  And  a  promise  to  marry  after  a  period 
longer  than  one  year,  has  been  held  to  be  within  the  last 
clause  of  this  section,  (b) 

A  parol  promise  in  a  marriage,  although  not  itself  en- 
forceable by  reason  of  the  statute,  has  been  held  to  be  a 
sufficient  consideration,  either  to  sustain  a  settlement  made 
after  marriage  in  conformity  with  the  promise,  (c)  or  a  new 
promise  made  in  writing  after  marriage,  (d)  And  where  in- 
structions are  given  and  preparations  made  for  marriage  set- 
tlements, and  the  woman  is  persuaded  by  the  man  to  marry, 
trusting  to  his  verbal  promise  to  complete  them,  it  has  been 
thought  that  equity  ought  to  relieve  and  compel  perform- 
ance, (e) 

The  principal  questions  which  have  arisen  under  this 
clause  relate  to  the  sufficiency  of  the  written  promise.  It 
is  enough  if  contained  in  a  letter ;  (/)   or  in  many  letters 

(2)  See   ante,   vol.    1,   pp.  546,  547.  the  match,  in  regard  his  friends  being 

And  see  further  Clark  v.  Penddlcton,  20  there  it  might  shame  him  ;  but  engaged 

Conn.  495 ;  Ogden  v.  Ogden,  1  Bland,  that  upon   his  honor  she  should  have 

287.  the  same  advantage  of  the  agreement 

(a)  See  ante,  vol.  I,  p.  554.  as  if  it  were  in  writing,  drawn  in  form 

(6)  See  «nte,  vol.  1,  p.  547.  by  counsel,  and  executed;  whereupon 

(c)  Wood  V.  Savage,  Walk.  Ch.  471.  the  marriage  took  effect.     To  this  bill 

But  see  ««?<>,  vol.  1,  p.  554,  n.  (0-  the   defendant  pleaded   the  statute    of 

{d)  Mountacue  r.  Maxwell,  1  Strange,  frauds.     And  the  Lord  Chancellor  said, 

236  ;  De  Beil  v.  Thomson,  .3  Bcav.  469  ;  "  In  cases  of  fraud,  equity  should  re- 

S.  C.  iwm.  Hammersley  v.  De  Beil,  12  lieve,   even  against  the   words   of  the 

CI.  &  Fin.  45  ;  Surcome   v.   Pinniger,  statute  ;  as  if  one  agreement  in  writing 

17  E.  L.  &  E.  212.  should  be  proposed  and  drawn,  and  an- 

(e)  Per  Slon/,  J.,  in  Jenkins  v.  Eld-  other  fraudulently  and  secretly  brought 

ridge,  3  Story ,291.     Butsee  Montacute  in  and  executed  in  lieu  of  the  former; 

V.  Maxwell,  "1   P.  Wms.  618.     In  this  in   this   or    such   like   cases   of   fraud, 

case  the  plaintiff  brought  a  bill  against  equity  would  relieve  ;  l)ut  where  there 

the  defendant,  her  husband,  setting  forth  is   no   fraud,    only   relying    npon    the 

that  the  defendant,  before  her  intermar-  honor,  word,  or  promise  of  the  defend- 

riagc  with  him,  promised  that  she  should  ant,  tlie  statute  making  these  promises 

enjoy  all  her  own  estate  to  her  separate  void,  equity  will  not  interfere  ;  nor  were 

use;   that   he   had   agreed    to   execute  the   instructions  given    to  counsel   for 

writings  to  that  purpose,  and  had  in-  preparing  tiie  writings  material,  since 

structcd  counsel  to  draw  such  writings,  after  they  were  drawn   and  engrossed, 

and  that  when  they  were  to  be  man-ied,  the    ])arties    might    refuse   to    execute 

the   writings  not   being   perfected,  the  them." 
defendant  desired  this  might  not  delay        (/)  Scagood  v.  Meale,  Prec.  in  Ch. 


CH.  IV.]  STATUTE    OF   FRAUDS.  311 

which  may  be  read  together  as  parts  of  a  correspondence  on 
one  subject,  (g)  But  it  must  be  a  promise  to  the  other 
party  ;  and  therefore  a  letter  from  a  father  to  his  daughter, 
promising  her  an  advancement,  which  is  not  shown  to  the 
intended  husband,  nor  known  to  him  until  after  marriage, 
is  denied  to  be  a  promise  to  him  within  the  meaning  of  the 
statute,  (h)  So  if  in  such  a  letter  the  writer  objects  to,  and 
endeavors  to  dissuade  from  the  proposed  marriage,  (i)  What- 
ever be  its  form,  it  must  amount,  substantially,  to  a  promise 
made  to  the  party,  in  consideration  that  he  or  she  will  marry 
a  certain  other  party,  (j) 

The  fourth  clause  provides  that  "  no  action  shall  be 
brought  upon  any  contract  or  sale  of  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them,"  unless, 
&c.  These  words  are  very  general,  and  obviously  intended 
to  have  a  wide  operation  ;  but  they  have  been  somewhat  con- 
trolled by  construction.  Thus,  if  the  question  be,  whether  a 
contract  for  the  sale  of  growing  crops,  be  a  contract  or  sale 
of  "  any  interest  concerning  lands,"  it  seems  to  be  answered 

560  ;  Wankforcl  v.  Fotherley,  2  Vcrn.  that  until  a  suitable  settlement  should 
322;  Bird  v.  Blosse,  2  Vent.  361.  In  be  made  by  II.,  of  real  estate,  upon  the 
this  last  case  a  father  wrote  a  letter  marriage,  in  the  usual  course  of  settle- 
signifying  his  assent  to  the  marriage  of  ment,  it  was  not  advisable  that  it  should 
his  daughter  with  one  J.  S.,  and  that  take  place.  This  resolution  was  com- 
he  would  give  her  1,500/.  Afterwards  municated  to  H.,  who  in  reply  wrote  to 
by  another  letter,  upon  a  further  treaty  M.  :  "  My  sentiments  respecting  you 
concerning  the  marriage,  he  went  back  continue  unalterable  ;  however,  I  shall 
from  the  proposals  of  his  first  letter,  never  settle  any  part  of  my  property 
But  subsequently  to  his  writing  the  last  out  of  my  power  so  long  as  I  exist, 
letter,  he  declared  that  he  would  agree  My  will  has  been  made  for  some  time ; 
to  what  was  proposed  in  bis  first  letter,  and  I  am  confident  that  I  shall  never 
The  court  htUl  tliat  the  last  declaration  alter  it  to  your  disadvantage.  I  repeat 
had  set  the  terms  in  the  first  letter  up  that  my  T.  estate  will  come  to  you  at 
again  ;  and  that  tlie  undertaking  there-  my  death,  unless  some  unforeseen  oc- 
fore  was  sufficiently  evidenced  by  writ-  currence  should  take  place ;  "  and  de- 
ing  within  the  statute  of  frauds.  sired  his  letter  to  be  communicated  to 
(«)  See  ante,  p.  285,  n.  (c.)  t'lc  guardians.  The  guardians  there- 
//VA1-/V  m  r.-r>TTr  ^r  upon  consented  to  the  marriage,  which 
(A)  AyhflPe  v.  Tracy,  2  P.  Wms.  65.  ^^^  solemnized.  The  court  Md,  1st, 
(i)  Douglass  V.  Vmcent,  2  Vern.  202.  that  the  letter  did  not  amount  to  a  con- 
(/)  See  Kandall  v.  Morgan,  12  Ves.  tract  by  II.  to  devise  the  T.  estates  to 
67 ;  Ogden  v.  Ogden,  1  Bland,  284.  M.,  and  that  II.  might  dispose  of  them 
In  Maunsell  v.  White,  1  J.  &  La  Touche,  as  he  pleased  by  his  will ;  2nd,  that  snp- 
539,  it  appeared  that  upon  a  treaty  for  posingit  amounted  to  a  contract,  matters 
a  marriage  between  M.  &  E.,  a  minor,  connected  with  tlie  subsequent  conduct 
M.  communicated  to  the  guardians  of  of  M.  were  "unforeseen  occurrences j" 
E.  a  letter  from  iiis  uncle,  IL,  stating  and  that  li.  was  the  sole  person  to  do- 
that  he  had,  by  his  will,  left  his  T.  es-  termine  whether,  upon  their  happening, 
tate   to    M.     The   guardians   resolved  he  would  alter  his  will. 


312 


THE   LAW   OF   CONTRACTS. 


[part  II. 


in  conformity  with  the  intention  of  the  parties.  If  grain  be 
reaped,  and  stacked  or  stored  in  barns,  it  becomes  certainly  a 
chattel.  And  if  it  be  growing  when  it  is  sold,  yet  if  the  sale 
contemplates  its  severance  when  grown,  and  a  delivery  of  it 
then,  distinct  from  the  land,  it  is  in  the  contemplation  of  the 
parties  a  mere  chattel,  and  is  therefore  so  in  the  view  of 
the  law,  so  far  at  least  as  this  statute  is  concerned,  {k)     And 


(k)  This  is  the  rule  declared  by  the 
Supreme  Judicial  Court  of  Massachu- 
setts, in  Whitmarsh  v.  Walker,  1  Met. 
313.  That  was  an  action  founded  on  a 
parol  agreement,  whereby  the  defendant 
agreed  to  sell  to  tlie  plaintiff  two  thou- 
sand mulberry  trees  at  a  stipulated  jjrice ; 
the  trees,  at  tlie  time  of  the  agreement, 
being  growing  in  the  close  of  the  defend- 
ant. It  was  ]iroved  at  the  trial,  that  the 
plaintiff  paid  the  defendant  in  hand  the 
sum  of  ten  dollars,  in  part  payment  of 
the  price  thereof,  and  promised  to  pay 
the  residue  of  the  price  on  the  delivery 
of  the  trees,  which  the  defendant  pro- 
mised to  deliver  on  demand  ;  but  wliich 
promise,  on  his  part,  lie  afterwards  re- 
fused to  perform.  The  defence  was  that 
the  contract  was  for  the  sale  of  an  inter- 
est in  land  within  the  meaning  of  the 
statute  of  frauds.  Wilde,  J.,  said,  "  We 
do  not  consider  tlic  agreement  set  forth 
in  the  declaration  and  proved  at  tlic 
trial,  as  a  contract  of  sale  consummated 
at  the  time  of  the  agreement ;  for  the 
delivery  was  postponed  to  a  future  time, 
and  the  defendant  was  not  bound  to 
complete  the  contract  on  his  part,  unless 
the  plaintiff  should  be  ready  and  willing 
to  comi)lete  by  the  payment  of  tlie  stipu- 
lated price.  Sainsbury  v.  Matthews,  4 
M.  &  W.  347.  Independently  of  the 
statute  of  frauds,  and  considering  the 
agreement  as  valid  and  binding,  no  pro- 
perty in  the  trees  vested  tlicrel)y  in  the 
plaintiff.  Tlie  delivery  of  them  and  the 
payment  of  the  price  were  to  be  simul- 
taneous acts.  Tlie  jilaintiff  cannot  main- 
tain an  action  for  the  non-delivery,  with- 
out proving  that  lie  offered,  and  was 
ready  to  complete  the  payment  of  the 
price ;  nor  could  the  defendant  main- 
tain an  action  for  the  price,  witiiout 
proving  that  he  was  ready  and  offered 
to  deliver  the  trees.  According  to  the 
true  construction  of  the  contract,  as  wc 
understand  it,  the  defendant  undertook 
to  sell  the  trees  at  a  stipulated  price, 
to  sever  them  from  the  soil,  or  to  per- 


mit the  plaintiff  to  sever  them,  and  to 
deliver  them  to  him  on  demand  ;  he  at 
the  same  time  paying  the  defendant  the 
residue  of  the  price.  And  it  is  imma- 
terial whetlicr  the  severance  was  to  be 
made  by  the  plaintiff  or  the  defendant. 
For  a  license  for  the  plaintiff  to  enter 
and  remove  the  trees  would  pass  no  in- 
terest in  the  land,  and  would,  Avithout 
writing,  be  valid,  notwithstanding  the 

statute  of  frauds We  think 

it  therefore  clear  that,  giving  to  the 
contract  the  construction  already  stated, 
the  plaintiff  is  entitled  to  recover.  If, 
for  a  valuable  consideration  the  defend- 
ant contracted  to  sell  the  trees,  to  de- 
liver them  at  a  future  time,  he  was 
bound  to  sever  them  from  the  soil  him- 
self, or  to  permit  the  plaintiff  to  do  it ; 
and  if  he  refused  to  comply  with  his 
agreement,  he  is  responsible  in  dam- 
ages." And  the  case  of  Nettlcton  v. 
Sikes,  8  Met.  34,  is  to  the  same  effect. 
It  was  there  held  that  an  agreement  by 
an  owner  of  land  that  another  may  cut 
down  the  trees  on  the  land,  and  peel 
them,  and  take  the  bark  to  his  own  use, 
is  not  within  the  statute  of  frauds.  The 
same  view  has  been  taken  in  several 
English  cases.  Thus,  in  Smith  v.  Sur- 
man,  9  B.  &  Cr.  561,  where  the  plaintiff, 
being  the  owner  of  trees  growing  on 
his  land,  verbally  agreed  with  the  de- 
fendant, while  they  were  standing,  to 
sell  him  the  timber  at  so  much  per 
foot,  Littkdale,  J.,  said,  "I  think  that 
the  contract  in  this  case  was  not  a 
contract  for  the  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest 
in  or  concerning  the  same,  within  the 
meaning  of  the  fourth  section.  Those 
words  in  that  section  relate  to  contracts 
(for  the  sale  of  the  fee  sim])le,  or  of  some 
less  interest  than  the  fee,)  which  give 
the  vendee  a  right  to  the  use  of  the  land 
for  a  specific  period.  If  in  this  case  the 
contract  had  been  for  the  sale  of  the 
trees,  with  a  specific  liberty  to  the  ven- 
dee to  enter  the  land  to  cut  them,  I 


CH.  IV.] 


STATUTE    OP    FRAUDS. 


olo 


we  think  it  is  the  same  with  growing  grass,  or  growing  trees, 
or  fruits;  although  some  cases  take  a  distinction  in  this  re- 


think it  would  not  liave  given  liim  nn 
interest  in  tlic  land,  within  the  meaning 
of  the  statute.  Tlic  object  of  a  ]jarty 
who  sells  timber  is,  not  to  give  the  ven- 
dee any  interest  in  his  land,  but  to  pass 
to  him  an  interest  in  the  trees,  when 
they  become  goods  and  chattels.  Here 
the  vendor  was  to  cut  the  trees  iiimself. 
His  intention  clearly  was,  not  to  give 
the  vendee  any  property  in  the  trees 
until  they  were  cut  and  ceased  to  be 
part  of  the  freehold."  And  Parke,  J., 
dismissed  this  question  with  saying. 
"  The  defendant  could  take  no  interest 
in  the  land  by  this  contract,  because  lie 
could  not  acquire  any  property  in  the 
trees  till  tlfey  were  cut."  Again,  in 
Sainsbury  v.  "Matthews,  4  M.&'W.  343, 
where  the  defendant,  in  the  month  of 
June,  agreed  to  sell  to  the  plaintiff"  the 
potatoes  then  growing  on  a  certain 
quantity  of  land  of  the  defendant,  at  2s. 
per  sack,  .the  plaintiff"  to  have  them  at 
digging  up  time  (October),  and  to  find 
diggers,  it  was  luld  that  this  was  not  a 
contract  for  the  sale  of  an  interest  in 
land,  within  the  meaning  of  the  statute 
of  frauds.  And  Parke,  B.,  said,  "  This 
is  a  contract  for  the  sale  of  goods  and 
chattels  at  a  future  day,  the  produce  of 
certain  land,  and  to  be  taken  away  at  a 
certain  time.  It  gives  no  right  to  the 
land ;  if  a  tempest  had  destroyed  the 
crop  in  the  meantime,  and  there  had 
been  none  to  deliver,  the  loss  would 
clearly  have  fallen  upon  the  defendant. 
It  is  only  a  contract  for  goods  to  be  sold 
and  delivered."  And  see  Evans  v.  Ro- 
berts, 5  B.  &  Cr.  829.  It  must  be  ad- 
mitted, however,  that  the  English  courLs 
manifest  a  strong  inclination,  in  the 
more  recent  cases,  to  hold  a  contract  to 
be  within  the  statute  or  not,  according 
as  the  subject-matter  of  it  consists  of 
Jriictus  induslriales,  or  the  spontaneous 
productions  of  the  earth.  See  Scorell 
V.  Boxall,  1  y.  &  Jer.  396;  Evans  v. 
Roberts,  .5  B.  &  Cr.  829;  Rodwell  v. 
Phillips,  9  M.  &  W.  501  ;  Jones  v. 
Flint,  10  Ad.  &  El.  753.  The  same 
rule  was  very  authoritatively  declared 
in  Ireland,  in  the  case  of  Dunne  v.  Fer- 
guson, Hayes,  540.  That  was  an  action 
of  trover  for  five  acres  of  turnips.  It 
appeared  that  in  October,  1 830,  the  de- 
fendant sold  to  the  plaintiff"  a  crop  of 
turnips  which  he  had  sown  a  short  time 
previously.      In    February,    1831,    and 

VOL.    II.  27 


previously,  while  the  turnips  were  still 
in  the  ground,  the  defendant  severed 
and  carried  away  considerable  quanti- 
ties of  them,  which  he  converted  to  his 
own  use ;  and  for  whic:h  the  present 
action  was  brought.  No  note  in  v/rit- 
ing  was  made  of  the  bargain.  It  was 
held  that  the  ])Iaintiff  was  entitled  to  re- 
cover. And  Joi/,  C.  B.,  said,  "The  gene- 
ral question  for  our  decision  is,  whether, 
in  this  case,  there  has  been  a  contract  for 
an  interest  concerning  lands,  within  the 
second  [fourth]  section  of  the  statute  of 
frauds;  or  whether  it  merely  concerned 
goods  and  chattels ;  and  that  question 
resolved  itself  into  another,  whether  or 
not  a  growing  crop  is  goods  and  chattels. 
The  decisions  have  been  verj'  contra- 
dictory,— a  result  which  is  always  to  be 
expected  when  the  judges  give  them- 
selves up  to  fine  distinctions.  In  one 
case,  it  has  been  held  that  a  contract  for 
potatoes  did  not  require  a  note  in  writ- 
ing, because  the  potatoes  were  ripe  ;  and 
in  another  case,  the  distinction  turned 
upon  the  hand  that  was  to  dig  them : 
so  that  if  dug  by  A.  B.,  they  were  pota- 
toes ;  and  if  by  C.  D.,  they  were  an  in- 
terest in  lands.  Such  a  course  alway.s 
involves  the  judge  in  perplexity,  and 
the  cases  in  obscurity.  Another  criterion 
must,  therefore,  bo  had  recourse  to ; 
and  fortunately,  the  later  cases  have 
rested  the  matter  on  a  more  rational  and 
solid  foundation.  At  common  law, 
growing  crops  were  uniformly  held  to  be 
(/oods ;  and  they  were  subject  to  all  the 
legal  consequences  of  being  goods,  as 
seizure  in  execution,  kc.  The  statute 
of  frauds  takes  things  as  it  finds  them  : 
and  provides  for  lands  and  goods,  ac- 
cording as  they  were  so  esteemed  before 
its  enactment.  In  this  way  the  ques- 
tion may  be  satisfactorily  decided.  If, 
before  the  statute,  a  growing  crop  had 
been  held  to  be  an  interest  in  lands,  it 
would  come  within  the  second  [fourth] 
section  of  the  act;  but  if  it  were  only 
goods  and  chattels,  then  it  came  within 
the  thirteenth  [seventeenth]  section.  On 
this,  the  only  rational  ground,  the  cases 
of  Evans  v.  Roberts,  5  B.  &  Cr.  828  ; 
Smith  V.  Surman,  9  B.  &  Cr.  561,  and 
Scorell  v.  Boxall,  1  Y.  &  Jer.  396,  have 
all  been  decided.  And  as  we  think 
that  growing  crops  have  all  the  conse- 
quences of  chattels,  and  are,  like  them. 
liable  to  be  taken  in  execution,  we  must 


314  THE    LAW   OF   CONTRACTS.  [PART  11. 

spect  between  what  grows  spontaneously,  and  that  which 
man  has  planted  or  sown  and  cultivated,  holding  that  only 
emblements,  or  what  might  be  emblements,  are  to  be  consi- 
dered as  chattels,  while  the  spontaneous  growth  of  the  land 
remains  a  part  of  it ;  at  least,  until  it  is  fully  ripe  and  ready 
for  removal.  (/)  If  by  the  same  contract  these  things  and 
the  land  on  which  they  stand  are  sold,  it  is  not  a  sale  of  land 
and  chattels,  for  then  they  pass  with  the  realty  as  a  part  of 
it,  and  the  contract  in  reference  to  them  is  as  much  within 
this  clause  of  the  statute  as  it  is  in  reference  to  the  land 
itself,  (m)  Such  are  the  views  expressed,  as  we  think,  by 
the  highest  authorities,  and  supported  by  the  best  reasons. 
But  there  is  some  uncertainty  and  conflict  on  .the  sub- 
ject. And,  perhaps,  it  may  be  stated  as  a  general  rule,  that 
if  the  parties  appear  to  consider  the  land  merely  as  a  place 
of  deposit  or  storing  for  the  vegetable  productions,  or  as  a 
means  by  which  for  a  time  they  may  be  improved,  they 
are  so  far  disconnected  from  it,  that  they  may  be  sold  as 
chattels,  and  are  not  within  the  statute.  And  it  is  only 
when  the  parties  connect  the  land  and  its  growth  together, 
either  by  express  words  or  by  the  nature  of  the  contract,  that 
the  growth  of  the  land  comes  within  the  statute.  It  seems 
to  be  settled  that  a  promise  to  pay  for  improvements  on  land, 
is  only  a  promise  to  pay  for  work  and  labor,  or  materials, 
and  not  for  an  interest  in  lands,  and  therefore  need  not  be  in 
writing,  (n)  And  a  contract  for  the  sale  of  removable  fix- 
tures is  not  within  the  statute,  (o) 

rule  the  points  saved  for  the  pUuntiff."  v.  Thomas,  1   Cr.  &  M.  89 ;  Erskinc  v. 

Such  also  is  the  settled  rule  in  New  Plummer,  7  Grcenl.  447. 

York.  Green  I'.  Armstrong.  1  DeniOi-'iSO;  (/)  See  preceding- note. 

Bank  of  Lansingbur<;h  I'.Crary,  1  Barb.  (m)  Thayer  r.  liock,  13  Wend.  53  ; 

542:    Warren  v.  Leland,  2  Barb.  G13.  Maytield    r.    Wadsley,    3    B.    &    Cr. 

For  other  cases  upon  the  sale  of<;ro\v-  3'u  ;   Earl  of  Falmouth  v.  Thomas,  1 

ing  crops,  see  Anonymous,  1  J.,d.  Kayni.  Cr.  &  M.  89  ;  Michelen  v.   Wallace,  7 

182;  Boulter  v.  Killingbeck,  1   B.  &  P.  Ad.  &  El.  49;  Vaughan  v.  Hancock,  3 

397  ;  Waddington  v.  JBristow,  2  B.  &  C.  B.  766;  Forquet  v.  iMoore,  16  E.  L. 

P.  452;  Crosby  r.  Wadsworth,  6  East,  &  E.  466.     But  this  rule  must  be  con- 

602  ;  Parker  v.   Staniland,  1 1  id.  362  ;  fined   to   cases  where    the  contract  for 

Newcomb  v.  Ramer,  2  Johns.  421,  n.  the  land  and  the  crops  standing  upon  it, 

{a);    Austin   v.    Sawver,    9    Cow.   39;  is  entire.     Sec  ao^e,  p.  31 1,  n.  (/>•). 

Warwick    v.   Bruce, '2   M.  &  S.  205;  («)  Frear  v.  Ilardenbergli,  5   Johns. 

Emmerson  v.  Heelis,  2  Taunt.  38 ;  May-  272  ;  Benedict  v.  Becbec,  1 1  Johns.  145: 

field  V.  Wadsley,  3  B.  &  Cr.  357  ;  Teal  Lower  v.  Winters,  7  Cow.  263. 

?).  Auty,  2  Br.  &  Bing.  99  ;  Kuowlcs  v.  (o)  Bostwick  v.  Leach,  3  Day,  476 ; 

Michel",  13  East.  249  ;  "Earl  of  Falmouth  Ilallen  v.  Bunder,  1  Cr.  M.  &  Eos.  266. 


CII.  IV.]  STATUTE   OF   FRAUDS.  315 

A  mere  license  to  use  land,  as  to  stack  hay  or  grain  upon 
it  for  a  time,  is  not  an  interest  in  lands  within  the  statute,  (p) 
But  that  only  is  a  license  in  this  respect,  which,  while  it  is  an 
excuse  for  a  trespass  as  long  as  it  is  not  revoked,  conveys  no 
rights  over  the  land,  and  subjects  it  to  no  servitude.  For  any 
contract  of  which  the  effect  is  to  give  to  one  party  an  ease- 
ment on  the  land  of  another,  is  within  the  statute,  (q)  But 
if  a  landlord  agrees  with  a  present  lessee  to  make  further  im- 
provements on  the  estate,  for  an  additional  compensation, 
this  has  been  held  to  be  an  agreement  collateral  only  to  the 
land,  and  not  within  the  statute,  (r) 

Generally,  in  this  country,  and  in  England,  the  stock  of  a 
corporation  is  personal  property ;  [s)  and  this  is  so,  even 
though  the  whole  property  of  the  corporation  be  real,  and 
the  whole  of  its  business  relate  to  the  care  of  real  estate ;  if 
it  be  the  surplus  profit  alone  that  is  divisible  among  the 
individual  members,  (t) 

But  where  lands  are  vested,  not  in  the  corporation,  but  in 
the  individual  shareholders,  and  the  corporation  has  only  the 
power  of  management,  in  that  case  the  stock  or  shares  are 
real  property.  (//)  And  it  would  follow  that  a  contract  for 
the  sale  of  this  stock,  or  for  these  shares,  is  within  the  statute, 
as  a  contract  for  the  sale  of  an  interest  in  lands. 

When   a    contract,   originally    within    this    clause  of  the  * 
statute,  has  been  executed,  and  nothing  remains  to  be  done 
but  payment  of  the  consideration,  this  may  be  recovered  not- 
withstanding the  statute,  (v)     But  in  such  case  the  declara- 


(/>)  Carrington  r.  Roots,  2  M.  &  W.  {t)  Bligli  v.  Brent,  2  Y.  &  Col.  2G8. 

248;  Riddle    v.  Brown,  20  Ala.  412;  («)  Id. 

iluniford  v.  Whiiney,  \^)  Wend.  380;  (r)  Thus,  if  a  verbal  contract  i.s  made 

Whitmarsh    v.    Walivcr,    1    Met.   313;  for  the  conveyance  of  land,  and  the  land 

Woodward  y.  Seely,  11  111.  1.57  ;  Stevens  is  conveyed  accordingly,  the  statute  of 

V.  Stevens,  11  Met    251;  Haughtaling  frauds  furnishes  no  defence  to  an  action 

r.  Haughtaling,  5  Barb.  379  ;  Wolfe  y.  brought  to  recover  the  price.  Bracket!  u. 

Frost,  4  Sandf.  Ch.  72;  Dubois  v.  Kel-  Evans,  1  Cush.  79  ;  Preble  r.  Baldwin,  6 

ly,  10  Barb.  496.     And  see  ante,  p.  23,  id.  549  :  Linscott  v.  Mclntire,  15  Maine, 

n.  (e.)  201  ;  Thayer  v.  Viles,  23  Verm.  494 ; 

(q)  See  cases  cited  in  preceding  note.  .  Morgan  v.   Bittenberger,  3   Gill,   350 ; 

(>•)  Hoby  I'.  Roebuck,  7  Taunt.  157;  Thomas    v.   Dickinson,    14   Barb.   90; 

Donellan  v.  Read,  3  B.  &  Ad.  899.  Gillespie  v.  Battle,  15  Ala.  270.     And 

(s)  Bligh  V.  Brent,  2  Y.  &  Col.  268  ;  see  Moore  v.  Ross,  11  N.  H.  555  ;  IIol- 

Tippcts  V.  Walker,  4  Mass.  595.     But,  brook  i'.  Armstrong,   1  Fairf.  31  ;  per 

see,  contra,  Welles  v.  Cowles,  2  Conn.  Timlal,  C.  J.,  in  Souch  v.  Striiwbridge, 

567.  2  C.  B.  808. 


316  THE   LAW   OF    CONTRACTS.  [PART  II. 

tion  must  be  framed,  not  upon  the  original  contract,  but 
upon  the  contract  implied  by  law  from  the  plaintiff's  per- 
formance, (iv) 

The  fifth  clause  of  thjs  section  declares  that  "  no  action 
shall  be  maintained  upon  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the  making 
thereof,  unless,"  &c.  Much  the  most  important  rule  in 
reference  to  this  section,  we  have  had  occasion  to  allude  to 
already,  (x)  It  may  be  %tated  thus.  If  the  executory  pro- 
mise be  capable  of  entire  performance  within  one  year,  it  is 
not  within  this  clause  of  the  statute.  The  decision  of  this 
question  does  not  seem  to  depend  entirely  upon  the  under- 
standing or  intention  of  the  parties.  They  may  contemplate 
as  probable  a  much  longer  continuance  of  the  contract,  or  a 
suspension  of  it  and  a  revival  after  a  longer  period  ;  it  may 
in  itself  be  liable  to  such  continuance  and  revival ;  and  it 
may  in  this  way  be  protracted  so  far  that  it  is  not  in  fact 
performed  within  a  year  ;  but  if  when  made,  it  was  in  reality 
capable  of  a  full  and  bona-fide  performance  within  the  year, 
without  the  intervention  of  extraordinary  circumstances,  then 
it  is  to  be  considered  as  not  within  the  statute.  (//) 

(?/')  Cocking  V.  Ward,  1   C.  B.  858;  went  away,  and  entered  into  A.'s  scr- 

Keliy  V.  Webster,  12  id.  283.  vice  on  the  24th  of  July,  it  was  held 

(x)  See  ante,  vol.  1,  p.  93,  n.  (e).  that  this  was  a  contract  on  the  20th, 

{//)  The  cases  whicli  have  arisen  upon  and  so  not  to  be  performed  within  the 

tlii.s  clause  of  tlie  statute  may  be  con-  space  of  one  year  from  the  making,  and 

veniontly    arranged    in    three    classes,  within  the  4th  section  of  the  statute  of 

1.  \^\\KYQ  by  the  express  agreement  of  the  frauds.  Snelling  r.  Lord  Huntingfield, 
parties,  the  performance  of  the  contract  1  Cr.  M.  &  Eos.  20.  Again,  in  IJircli 
is  not  to  be  completed  within  one  year.  v.  The  Earl  of  Liverpool,  9  B.  &  Cr. 

2.  Where  it  is  evident, y;o?«  the  subject-  392,  it  was  held  that  a  contract  whereby 
matter  of  the  contract,  tliat  the  j)arties  inul  a  coachmaker  agreed  to  let  a  carriage 
in  contemplation  a  longer  jieriod  than  for  a  term  of  5  years,  in  consideration 
one  year  as  the  time  ibr  its  perform-  of  receiving  an  annual  payment  for  the 
ancc.  3.  Where  the  time  for  the  per-  use  of  it,  was  within  the  statute.  And 
formancc  of  the  contract  is  made  to  see  Lower  v.  Winters,  7  Cow.  263 ; 
(lei)cnd  upon  some  contingency,  wliich  Derby  ?;.  rhelj)s,  2  N.  XL  .51.');  Hinck- 
maj'or  Tnay  not  happen  within  one  year,  ley  v.  Southgate,  11  Verm.  428  ;  Squire 
Cases  falling  within  the  first  class  are  v.  Wliipple,  I  id.  G9  ;  Footc  v.  Emer- 
dearly  within  the  statute.  'J'htis.  in  .^on,  10  id.  338;  I'ltclicr  v.  Wilson,  .'> 
Bracegirdle  v.  llcald,  1  B.  &  Aid.  722,  Missouri,  4G  ;  Drunimond  v.  Burrcll, 
it  was  held  that  a  contract  made  on  the  •  13  AVcnd.  307  ;  Shutc  v.  Dorr,  5  id. 
27th  of  May,  for  a  year's  .service,  to  204;  Lockwood  v.  Barnes,  3  Hill,  130; 
commence  on  the  30th  of  June  follow-  Sweet  i-.  Lee,  4  Scott,  N.  K.  7*7  ;  (Jiraud 
ing.  was  within  the  statute.  So,  where  v.  Kichmond,  2  C.  B.  835;  Lajjliam  y. 
A.,  on  the  20th  of  July,  made  proposals  .  Whipple,  8  Mete.  59  ;  Tuttle  r.  Swett, 
to  B.  to  enter  Ills  service  as  bailill  for  a  31  Maine,  555;  Wilson  r.  l\Iartin,  1 
year,  and   B.   took  the   proiiosais   and  Denio,  C02  ;   I'itkin   v.  Tlie   Long  Is- 


CII.  IV.] 


STATUTE    OF   FRAUDS. 


317 


The    same    observation   may  be   made  in  respect  to   the 
clause  of  which  we  are    now  treating,  that  we  have  ah'cady 


land  K.  II.  Company,  2  Barb.  Ch.  221. 
And  siuli  a  contrac-t  will  not  be  taken 
out  of  the  statute  by  the  mere  fact  that 
it  may  be  ])ut  an  end  to  within  a  year 
by  one  of  ihe  parties,  or  a  third  person. 
Thus,  in  Harris  i:  Porter,  2  Ilarring. 
27,  where  the  defendant,  a  mail  con- 
tractor, made  a  sub-contract  with  the 
plaintirt"  to  carry  the  mail  for  more  than 
a  year,  it  was  contended  that  the  con- 
tract was  not  within  the  statute,  because 
the  contract  between  the  dci'cndant  and 
the  postmaster-general  reserved  to  the 
latter  the  power  to  alter  tiie  route,  and 
thus  put  an  end  to  the  contract  at  any 
time  ;  it  might,  therefore,  be  terminated 
within  a  year,  and  did  not  necessarily 
reach  beyond  it.  But  the  Court  said, 
"This  was  a  contract  which  could  not 
possibly  be  'performed  within  one  year; 
by  its  terms  it  was  to  continue  four 
years.  And  though  it  might  be  an- 
nulled or  put  an  end  to  by  the  post- 
master-general within  the  year,  it  still 
falls  within  the  act  as  an  agreement 
which,  according  to  its  terms,  is  not  to 
be  performed  within  the  space  of  one 
year."  Birch  v.  the  Earl  of  Liverpool, 
9  B.  &  Cr.  392,  is  to  the  same  effect. 
But  if  it  is  merely  optional  with  one  of 
the  parties  whether  he  shall  perform 
the  contract  within  a  year  or  take  a 
longer  time,  the  contract  is  not  within 
the  statute.  Therefore,  it  has  been  held 
that  an  agreement  that  one  party  may 
cut  certain  trees  on  the  land  of  the 
other,  at  any  time  within  ten  years,  is 
not  within  the  statute.  Kent  v.  Kent, 
18  rick.  569.  So,  where  the  plaintiff 
and  defendant  entered  into  a  contract 
by  which  the  plaintiff  agreed  to  labor 
for  the  defendant  for  one  year,  but  with- 
out fixing  any  definite  time  for  the 
labor  to  commence,  it  was  held  that  the 
contract  was  not  within  the  statute,  for 
the  plaintiff  had  a  right  to  commence 
immediately.  Eussell  v.  Sladc  1 2  Conn. 
4.55.  And  see  Linscott  r.  Mclntirc,  15 
Maine,  201  ;  Plimpton  v.  Curtiss,  15 
Wend.  336.  In  regard  to  the  second 
class  of  cases,  namely,  those  wlieVe  it  is 
evident,  from  the  suhject-malter  of  the 
contract,  tliat  the  parties  had  in  contem- 
plation a  longer  period  than  one  year 
as  the  time  for  its  performance,  although 
there  is  no  express  agreement  to  that 
effect,  tliere  has  been  more  doubt,  but  it 
27  * 


is  now  settled  that  they  are  witliin  the 
statute.  The  leading  case  of  this  class 
is  Boydcll  v.  Drummond,  11  East.  142. 
In  this  case  the  plaintiff'  had  jiroposed 
to  iHiblish  by  subscription  a  series  of 
large  ])rints  fi'om  some  of  the  scenes  in 
Shalrespeare^s  plays,  after  pictures  to  be 
painted  for  that  purpose,  under  the  fol- 
lowing conditions,  among  others,  name- 
ly, that  seventy-two  scenes  were  to  be 
jiaintcd,  at  the  rate  of  two  to  each  ))lay, 
and  the  whole  were  to  be  published  in 
numbers,  each  containing  four  large 
prints  ;  and  that  one  number  at  least 
should  be  annuallij  published  after  the 
delivery  of  the  first.  The  defendant  be- 
came a  subscriiier.  And  the  court  held 
that  the  contract  was  within  the  statute. 
The  same  point  is  well  illustrated  liy  the 
case  of  Herrin  v.  Butters,  20  Maine, 
119.  For  the  facts  of  that  case  see 
ante,  vol.  1,  p.  93,  n.  (e.)  Whitman,  C. 
J.,  in  delivering  the  opinion  of  the  court, 
said,  "It  is  urged,  that  the  defendant 
might  have  cleared  up  the  land,  and 
have  seeded  it  down  in  one  year,  and 
thereby  have  performed  his  contract. 
This  nmy  have  been  within  the  range 
of  possibility ;  but  whether  so  or  not 
must  depend  upon  a  numlier  of  facts,  of 
which  the  court  are  uninformed.  This, 
however,  is  not  a  legitimate  inquiry  un- 
der this  contract.  We  are  not  to  in- 
quire what,  by  possibility,  the  defendant 
might  have  done,  by  way  of  fulfilling 
his  contract.  We  must  look  to  the  con- 
tract itself,  and  see  what  he  was  bound 
to  do  ;  and  what,  according  to  the  terms 
of  the  contract,  it  was  the  understand- 
ing that  he  should  do.  Was  it  the  un- 
derstanding and  intention  of  the  ))arties 
that  the  contract  might  be  performed 
within  one  year?  If  not,  the  case  is 
clearly  with  the  defendant.  But  the 
contract  is  an  entirety,  and  all  parts  of 
it  must  be  taken  into  view  together,  in 
order  to  a  perfect  understanding  of  its 
extent  and  meaning.  We  must  not 
only  look  at  what  the  defendant  had 
undertaken  to  do,  but  also  to  the  con- 
sideration inducing  him  to  enter  into 
the  agreement.  'I'he  one  is  as  neces- 
sary a  part  of  the  contract  as  the  other; 
an(l  if  either,  in  a  contract  wliolly  exe- 
cutory, were  not  to  be  performed  in  one 
year,  it  would  be  within  the  statute  of 
frauds.     Here  the  defendant  was  not  to 


318 


THE    LAW   OF    CONTRACTS. 


[PART  II. 


had  occasion  to  make  of  other  clauses  in  the  fourth  section, 
namely,  that  when  a  contract,  originally  within  its  provisions, 


avail  himself  of  the  consideration  for  his 
engagement,  except  by  n  receipt  of  the 
annual  profits  of  the  land,  as  tliey  might 
accrue,  for  the  term  of  three  years. 
But  whether  tiiis  he  so  or  not,  it  is  im- 
possible to  (loul)t  tliat  the  parties  to  this 
contract  perfectly  well  understood  and 
contem])lated,  that  it  was  to  extend  into 
the  third  year  for  its  performance,  both  on 
the  part  of  the  jilaintiff  and  defendant. 
Its  terms  most  clearl}'  indicate  as  much ; 
and  by  them  it  must  be  interpreted." 
In  the  case,  Moore  v.  Fox,  10  Johns. 
224,  the  court  say,  to  bring  the  case 
within  tlic  statute,  it  must  appear  to  be 
an  express  and  specific  agreement  that 
the  contract  is  not  to  be  performed 
within  one  year,  and  cite  tlie  case  of 
Fenton  r.  Emblers,  3  Burr.  1278,  where 
the  same  language  is  used  by  the  court. 
But  in  the  case  of  Boydell  r.  Drum- 
mond,  11  East,  142,  in  which  tlierc  was 
no  express  and  specific  agreement,  that 
the  contract  should  not  be  performed 
within  a  year,  tiie  court  say,  that  the 
whole  scope  of  the  undertaking  shows 
that  it  was  not  to  be  performed  within 
a  year,  and  was  therefore  within  the 
statute.  This  seems  to  show,  very  clear- 
ly, what  is  to  be  understood  l)y  an  ex- 
press or  specific  agreement,  tliat  a  con- 
tract is  not  to  be  performed  within  a 
vear.  In  the  case,  Peters  v.  West- 
borough,  19  Pick.  364,  Mr.  Justice  WilJe, 
in  delivering  tlie  opinion  of  the  court, 
says,  it  must  have  been  expressly  stipu- 
lated by  the  parties,  or  it  must  appear  to 
have  been  so  understood  by  them,  that  the 
agreement  was  not  to  be  jierformed 
within  a  year.  But  who  can  doubt  what 
the  express  and  specific  understanding 
of  the  parties  in  the  case  at  bar  was  '( 
and  that  it  was  not  to  be  performed 
within  one  year  ?  Or  at  any  rate,  that 
it  appears  to  have  been  so  understood 
by  them."  In  regard  to  the  third  class 
of  cases,  namely,  where  the  time  for  tlie 
performance  of  tlie  contract  is  made  to 
depend  upon  some  contingency,  which 
may  or  niay  not  happen  within  a  year, 
it  is  settlcil  that  they  do  not  come  with- 
in the  statute.  This  was  decided  against 
the  opinion  of  Holt,  C.  J.,  in  the  case  of 
Peter  v.  Compton,  Skin.  3.'53.  There 
the  defendant  promised  for  one  guinea 
to  give  the  plaintilf  so  many  guineas  on 
the  day  of  his  marriage.     And  it  was 


held  that  the  plaintiflT  was  entitled  to  re- 
cover although  the  agreement  was  not 
in  writing.  So,  in  Fenton  r.  Emblers, 
3  Burr.  1278,  where  the  defendant's 
testator  undertook,  by  his  last  will  and 
testament,  to  liequeath  tlie  ])laintiflF  a 
legacy,  it  was  held  that  the  undertaking 
was  not  within  the  statute,  because  the 
time  for  its  performance  depended  upon 
the  life  of  the  testator,  which  might  be 
terminated  within  a  year.  Again,  in 
Wells  V.  Horton,  4  Bing,  40,  where  A. 
being  indebted  to  the  plaintilf,  promised 
him  that  in  consideration  of  his  forbear- 
ing to  sue,  A.'s  executor  should  pay  hira 
10,000/.;  it  was  held  that  this  was  not 
a  promise  required  by  the  statute  of 
frauds  to  be  in  writing.  And  this  doe- 
trine  has  been  carried  so  far  as  to  in- 
clude a  case  where  one  umlertakes  to 
abstain  from  doing  a  certain  thing,  with- 
out limitation  as  to  time,  on  the  ground 
that  such  a  contract  is  in  its  nature 
binding  only  during  the  life  of  the  party. 
Thus,  in  Lyon  i".  King,  11  Met.  411,  the 
defendant,  for  a  good  consideration,  pro- 
mised the  plaintiff  that  he  would  not 
thereafter  engage  in  the  staging  or  the 
livery  stable  business  in  Southbridge. 
And  the  court  held  that  the  contract  was 
not  within  the  statute.  Deirejj,  J.,  said, 
"  The  contract  might  have  been  wholly 
performed  within  a  year.  It  was  a  per- 
sonal engagement  to  forbear  doing  cer- 
tain acts.  It  stipulated  notlihig  beyond 
the  defendant's  life.  It  imposed  no 
duties  upon  his  legal  representatives,  as 
might  have  been  the  case  under  a  con- 
tract to  perform  certain  positive  duties. 
The  mere  fact  of  abstaining  from  pur- 
suing the  staging  and  livery  stable  busi- 
ness, and  the  happening  of  his  death, 
during  the  year,  would  be  a  full  per- 
formance of  this  contract.  Any  stipu- 
lations in  the  contract,  looking  beyond 
the  year,  depended  entirely  upon  the 
contingency  of  the  defendant's  life  ;  and 
tliis  being  so,  the  case  falls  within  the 
class  of  cases  in  wiiich  it  has  been  held 
that  the  statute  does  not  apply.  So,  in 
Foster?'.  McO'Blenis,  IS  Missouri,  88, 
it  was  held  that  a  verl)al  agreement  not 
thereafter  to  run  carriages  on  a  parti- 
cular route,  was  not  within  the  statute. 
But  see  Kolierts  v.  Tucker.  3  Excli.  632  ; 
lloUoway  7\  Hampton.  4  B.  Moiir.  415. 
For  other  cases  depending  upon  a  con- 


en.  IV.] 


STATUTE    OF   FRAUDS. 


319 


has  been  entirely  executed  on  one  side,  and  nothing  remains 
but  the  payment  of  the  consideration,  this  may  be  recovered, 
notwithstanding  the  statute,  (z)  But  whether  a  recovery  can 
be  had  on  the  original  contract,  or  only  on  a  quantum  meruit, 
is  not  entirely  clear  upon  the  authorities,  (a)  Upon  princi- 
ple, however,  we  should  say  that  a  recovery  in  such  case  can 
be  had  only  upon  a  quantum  meruit,  (b). 

We  now  pass  to  the  seventeenth  section.  Let  us  first  en- 
quire what  satisfies  the  condition,  that  the  buyer  shall  accept 
and  actually  receive  a  part  of  the  goods.  Some  confusion 
has  arisen  on  this  subject,  from  a  want  of  discrimination  be- 


tingcncy,  sec  Gilhert  v.  Sykcs,  1 G  East, 
150;  Soiich  V.  Strawbrid'jc,  2  C  B. 
808;  M'Lces  v.  Hale,  10  Wend.  426; 
Blake  r.  Cole,  22  Pick.  97;  Peters  v. 
Westi)orout,'h,  19  Pick.  364;  Roberts  v. 
The  Kockl'jottom  Co.,  7  Met.  46 ;  Elli- 
cott  V.  Peterson,  4  Maryland,  476  ;  Clark 
V.  Pendleton,  20  Conn.  495  ;  Howard  v. 
Burgen,  4  Dana,  137.  In  the  case  of 
Tolley  V.  Greene,  2  Sandf.  Ch.  91,  the 
Assistant  Vice-Cliancellor  intimated  an 
opinion  that  a  contract  which  cannot  be 
performed  within  a  year,  except  Upon  a 
contingency  -which  neither  party,  nor 
both  together,  can  hasten  or  retard,  snch 
as  the  death  of  one  of  them  or  of  a  third 
person,  is  not  within  the  statute.  But 
Ave  are  not  aware  that  such  a  distinction 
finds  any  support  in  the  decided  cases. 

{z)  This  point  was  adjudged  in  Do- 
nellan  v.  Head,  3  B.  &  Ad.  899.  In 
that  case  a  landlord  who  had  demised 
premises  for  a  term  of  years,  at  .'JO/.  a 
year,  agreed  with  his  tenant  to  lay  out 
50/.  in  making  certain  improvements 
upon  them,  the  tenant  undertaking  to 
pay  him  an  increased  rent  of  5/.  a  year 
during  the  remainder  of  the  term  (of 
which  several  years  were  unexpired), 
to  commence  from  the  quarter  preced- 
ing the  completion  of  the  work.  And 
it  was  held  that  this  was  not  within  the 
statute  of  frauds,  as  an  agreement  "  not 
to  be  performed  within  one  year  from 
the  making  thereof,"  no  time  being  fixed  , 
for  the  performance  on  the  part  of  the 
landlord.  During  the  argument,  Parke, 
J-,  interrupted  the  counsel  to  say,  "  If 
goods  are  sold,  to  be  delivered  imtne- 
diatdly,  or  work  contracted  for,  to  be 
done  in  less  than  a  year,  but  to  be  paid 
for  in  fourteen  months,  or  bv  more  than 


four  quarterly  instalments,  is  that  a 
case  witltin  the  statute  ?  In  Brace- 
girdle  V.  Heald,  1  B.  &  Aid.  722,  AbhoU, 
J.,  takes  the  distinction,  tiiat  in  the  case 
of  an  agreement  for  goods  to  be  deliver- 
ed by  one  party  in  six  months,  and  to 
be  paid  for  in  eighteen,  all  that  is  to  be 
performed  on  one  side  is  to  be  done 
within  a  year ;  which  was  not  so  in  the 
case  then  before  the  Court."  And  Lit- 
tledale,  J.,  in  delivering  the  judgment  of 
the  court,  said,  •'  As  to  the  contract  not 
being  to  be  performed  within  a  year, 
we  think  that  as  the  contract  was  en- 
tirely executed  on  one  side  within  a 
year,  and  as  it  was  the  intention  of  the 
parties,  founded  on  a  reasonable  expec- 
tation, that  it  should  be  so,  the  statute 
of  frauds  does  iiot  extend  to  such  a 
case.  In  case  of  a  parol  sale  of  goods, 
it  often  happens  that  they  are  not  to  be 
paid  for  in  full,  till  after  the  exjjiration 
of  a  longer  period  of  time  than  a  year  ; 
and  surely  the  law  would  not  sanction 
a  defence  on  that  ground,  when  the 
buyer  had  had  the  full  benefit  of  the 
goods  on  his  part."  Tor  other  cases 
illustrating  this  point,  see  Cherry  v. 
Heming,  4  Exch.  631  ;  Souch  v.  Straw- 
bridge,  2  C.  B.  808  ;  Mavor  v.  Pyn'e,  3 
Bing.  285 ;  Lockwood  v.  Barnes,  3  Hill, 
128;  Broadwell  v.  Getman,  2  Denio, 
87 ;  Holbrook  v.  Armstong,  1  Eairf. 
31  ;  Compton  v.  Martin,  Ci  Rich.  14  ; 
Bates  r.  Moore,  2  Bail.  614;  Johnson 
r.  Watson,  1  Geo.  348 ;  Rilke  v.  Pope, 
7  Ala.  161  ;  Blanton  v.  Knox,  3  Mis- 
souri, 342;  Talmadgc  v.  Tlic  Rensse- 
laer &  Saratoga  R.  R.  Co.  13  Barb. 
493;  Stone  v.  Dennison,  13  Pick.  1. 

(«)  See  cases  cited  in  preceding  note. 

(6)  And  see  ante,  p.  316,  n.  («■). 


320  THE  LAW  OF  CONTRACTS.  [PART  II. 

tween  a  sale  at  common  law,  a  sale  as  effected  by  the  statute 
of  Elizabeth,  of  fraudulent  conveyances,  and  the  statute  of 
Charles,  of  frauds  and  perjuries.  At  common  law,  if  the 
seller  makes  a  proposition  and  the  buyer  accepts,  and  the 
goods  are  in  the  immediate  control  and  possession  of  the 
seller,  and  nothing  remains  to  be  done  to  identify  them  or  in 
any  way  prepare  them  for  delivery,  the  sale  is  complete,  and 
the  property  in  the  goods  passes  at  once  and  perfectly  ;  the 
buyer  acquires  not  a  mere  Jus  ad  rem,  but  an  absolute  j?/5  in 
re ;  and  he  may  demand  delivery  at  once,  on  tender  of  the 
price,  and  sue  for  the  goods  as  his  own  if  delivery  be  refused; 
the  seller  having  no  right  of  property,  but  a  mere  right  of 
possession,  by  way  of  lien  on  the  goods  for  his  price,  (c)  Then 
came  the  statute  of  Elizabeth,  which,  aided  by  construction, 
made  the  want  of  delivery,  or  of  transfer  of  possession,  evi- 
dence, more  or  less  conclusive,  of  fraud,  which  vitiated  the 
sale.  Here  then  grew  up  many  questions  as  to  what  consti- 
tuted delivery,  and  what  was  its  effect ;  and  we  have  seen 
that  a  great  diversity  and  conflict  of  adjudication  has  existed 
upon  these  questions,  [d)  But  after  the  statute  of  Elizabeth 
came  the  statute  of  Charles,  of  frauds  and  perjuries  ;  and 
this  in  express  terms  requires,  in  order  to  sustain  an  action, 
both  deliver//  and  acceptance  ;  and  the  questions  which  spring 
up  under  this  statute  must  be  considered  as  entirely  distinct 
from  the  former  questions.  To  illustrate  this  in  the  simplest 
form,  let  us  suppose  that  A.  orally  orders  B.  to  send  him  one 
hundred  bales  of  cotton,  of  a  certain  quality  and  price;  B. 
sends  the  goods  as  directed  ;  and  here  no  question  can  exist 
under  the  statute  of  Elizabeth  in  respect  to  the  possession, 
because  that  has  been  transferred  by  the  delivery;  but  the 
case  is  still  open  to  any  inquiry  as  to  fraud.  At  common 
law,  A.  may  say  that  the  cotton  is  not  of  the  kind  or 
quality  that  he  ordered,  and  if  he  can  establish  this,  he  has 
the  right  of  sending  it  back  and  refusing  to  pay  for  it ;  if  he 
can  not,  the  transaction  is  completed ;  the  seller  cannot  re- 
claim the  cotton,  nor  the  buyer  refuse  the  price.  But,  by  the 
statute  of  frauds,  the   buyer  may  at  once  send  the  cotton 

# 

(c)  See  ante,  vol.  1,  pp.  440,  441. 

(d)  See  ante,  vol.  1,  pp.  441,  442. 


en.   IV.]  STATUTE   OF  FRAUDS.  321 

back,  and  refuse  payment  for  it,  although  precisely  what  he 
ordered,  and  no  action  can  be  brought  against  him  for  the 
price.  Because,  by  this  statute  both  delivery  and  acceptance 
are  requisite ;  and  the  delivery  is  to  be  made  by  one  party, 
and  the  acceptance  by  another  ;  and  the  consequence  of  this 
is,  that  while  the  seller  is  bound  by  his  delivery,  and  cannot 
reclaim  the  goods,  the  buyer  has  his  option  to  keep  the  goods 
and  pay  for  them,  or  return  them  and  not  pay.  The  statute 
in  fact  postpones  the  completion  of  an  oral  contract  of  sale. 
At  common  law,  it  is  finished  when  one  makes  the  offer  of 
sale  and  the  other  accepts.  By  the  statute,  nothing  is  done 
by  this  offer  and  acceptance;  another  step  must  betaken; 
the  goods  themselves  must  be  offered  and  accepted,  and  then 
only  is  the  sale  completed.  It  should  seem,  perhaps,  that  the 
same  reason  would  give  the  seller,  after  delivery  of  the  goods, 
and  before  acceptance  of  them,  the  same  right  to  withdraw 
his  goods,  that  he  has  to  withdraw  his  offer  before  an  accep- 
tance of  it ;  but  we  are  not  aware  of  any  authority  to  this 
effect. 

In  regard  to  what  constitutes  a  delivery  under  the  statute, 
and  what  constitutes  an  acceptance,  there  have  been  many 
decisions  which  it  is  difficult  to  reconcile.  But  the  question 
is  often  one  of  fact  rather  than  of  law.  Indeed  it  is  always 
a  question  of  fact  for  the  jury,  whether  the  goods  were  deliv- 
ered and  accepted  ;  but  it  is  a  question  on  whicli  they  will 
be  directed  by  the  court;  and  thus  the  question  becomes  a 
mixed  one,  of  fact  and  law. 

It  may  be  said,  in  general,  that  a  delivery  must  be  a  trans- 
fer of  possession  and  control,  made  by  the  seller,  with  the 
purpose  and  effect  of  putting  the  goods  out  of  his  hands,  (e) 

(e)  Phillips  V.  Bistolli,  2  B.  &  Cr.511  ;  Sec  Howe  v.  Palmer,  3  B.  &  Aid.  321  ; 

Dole  V.  Stiiapson,  21  Pick.  384  ;  Tern-  Tempest  v.  Fitzgerald,  id.  680;  Maher- 

pest  V.  Fitzgerald,  3  B.  and  Aid.  680.  ley  v.  Shcppard,  10  Bing.  99  ;  Carter  u. 

In  the   earlier  cases,  slight  acts  were  Toussaint,  .'i  B.  &Ald.  855;  Baldey  v. 

considered  as  sufficiently  evidencing  the  Parker,  2  B.  &  Cr.  37.     '•  To  constitute 

actual   receipt  of  the  property  by   the  delivery,"  in  the  language  of  ParLc,  B., 

purchaser.     Cliaplin  v.  Kogers,  TEast,  in  Bill  )'.  Bament,  9  M.  &  \V.  41,  -'the 

192  ;  Hodgson  v.  Le  Bret,  TCanip.  2.'33  ;  possession  must  have  lieen  parted  with 

And'crson^'r.   Scott,   1   Campl).  235,  n. ;  hy  the  owner,  so  as  to  deprive  him  of  the 

Elmore  v.  Stone,  1    Taunt.  458  ;  Bleu-  rightof  lien."  But  sec  Dodsley  i'.  Varley, 

kinsop  V.  Clayton,  7  Taunt.  597;  Vin-  12  Ad.  &  El.  632.     The  ([ucstion,  what 

cent  f.  Gcrmo'nd,  11  Johns.  283.     But  constitutes  a  sufficient  delivery  to  satisfy 

the  later  cases  are  much  more  strict,  the  statute  was  much  discussed  in  New 


322 


THE  LAW   OF   CONTRACTS. 


[part  n. 


This  is  a  sufficient  delivery,  whatever  be  its  form.     Hence  it 
may  be  constructive ;  as  by  the  delivery  of  a  key  of  a  ware- 


York,  in  the  recent  case  of  Shindlcr  v. 
Houston,  1  Denio,  48,  1  Comst.  20 1. 
In  that  case  the  phiintitF  and  defendant 
bargained  respecting  tlie  sale,  by  tlie 
former  to  t!ie  latter,  of  a  qnantity  of 
lumber,  piled  apart  from  other  lumber, 
on  a  dock,  and  in  the  view  of  the  par- 
ties at  tlic  time  of  the  bargain,  and 
which  had  been  before  that  time  measur- 
ed and  inspected.  The  defendant  offer- 
ed a  certain  price  per  foot,  Nvliich  being 
satisfactory  to  the  plaintiff,  he  said, 
"  The  lumber  is  yours."  The  defendant 
then  told  tlie  plaintiff"  to  get  the  inspec- 
tor's bill  of  the  lumber,  and  take  it  to 
one  House,  who  was  the  defendant's 
agent,  and  who,  he  said,  would  pay  the 
amount.  This  was  soon  after  done,  but 
payment  was  refused.  The  price  being 
over  fifty  dollars,  and  the  statute  of 
frauds  being  relied  on,  it  was  held  by 
the  Supreme  Court,  in  an  action  for  the 
price  of  the  lumber,  upon  a  declaration 
for  lumber  sold  and  delivered,  that  the 
court  below  was  right  in  refusing  to 
charge  the  jury  that  the  property  did  not 
pass  at  the  time  of  the  bargain ;  and 
that  the  facts  were  properly  submitted 
to  the  jury,  with  instructions  that  they 
might  iind"  an  absolute  delivery  and  ac- 
ceptance of  tlie  lumber  at  the  time  of 
the  bargain,  and  that  the  payment  was 
postponed,  and  credit  given  therefor, 
until  the  inspector's  bill  should  be  pre- 
sented to  House.  But  upon  appeal 
to  the  Court  of  Appeals,  the  judgment 
of  the  Supreme  Court  was  reversed. 
And  Wriald,  J.,  in  delivering  his  opinion 
in  the  latter  court,  said,  "  It  is  to  be 
regretted  that  the  plain  meaning  of  the 
statute  should  ever  have  been  dcjiartcd 
from,  and  that  anything  short  of  an 
actual  delivery  and  acceptance  should 
have  been  regarded  as  satisfying  its  re- 
quirements, when  the  memorandum  was 
omitted;  but  another  rule  of  interpre- 
tation, which  admits  of  a  constructive 
or  symbolical  delivery,  has  become  too 
firmly  established  now  to  be  shaken. 
The  uniform  doctrine  of  the  cases,  how- 
ever, has  been,  that  in  order  to  satisfy 
the  statute  there  must  be  something 
more  than  mere  words — that  the  act  of 
accepting]  and  receiviiuj  required  to  dis- 
pense with  a  note  in  writing,  implies 
more  than  a  simple  act  of  the  mind, 
unless  the  decision  in  Elmore  v.  Stone, 


1  Taunt.  458,  is  an  exception.  This 
case,  however,  will  be  found  upon  ex- 
amination to  be  in  accordance  with 
other  cases,  although  the  acts  and  cir- 
cumstances relied  on  to  show  a  delivery 
and  acceptance,  were  extremely  slight 
and  equivocal ;  and  hence  the  case  was 
doubted  in  Howe  v.  Palmer,  2  B.  &  Aid. 
324,  and  Proctor  r.  Jones,  2  C.  &  P.  .534, 
and  has  been  virtually  overruled  by  sub- 
sequent decisions.  Far  as  the  doctrine  of 
constructive  delivery  has  been  sometimes 
carried,  I  have  been  unable  to  find  any 
case  that  comes  up  to  dispensing  with 
all  acts  of  parties,  and  rests  wholly  up- 
on the  memory  of  witnesses  as  to  the 
precise  form  of  words  to  show  a  delivery 
and  receipt  of  the  goods.  The  learned 
author  of  the  Commentaries  on  Ameri- 
can Law,  cites  from  the  Pandects  the 
doctrine  that  the  consent  of  the  party 
upon  the  spot  is  a  sufficient  possession 
of  a  column  of  granite,  which  by  its 
weight  and  magnitude,  was  not  suscep- 
tible of  any  other  delivery.  But  so  far 
as  this  citation  may  be  in  opposition  to 
the  general  current  of  decisions,  in  the 
conmion  law  courts  of  I<>ngland  and  of 
this  country,  it  is  sufficient  perhaps  to 
observe  that  the  Roman  law  has  no- 
thing in  it  analogous  to  our  statute  of 
frauds.  In  P^lmore  v.  Stone,  expense 
was  incurred  by  direction  of  the  buyer, 
and  the  vendor,  at  his  suggestion,  re- 
moved the  horses  out  of  the  sale  stable 
into  another,  and  kept  them  at  livery 
for  him.  In  Chaplin  v.  Eogers,  1  East, 
192,  to  which  we  were  referred  on  the 
argument,  the  buyer  sold  part  of  the 
hay,  which  the  purchaser  had  taken 
away ;  thus  dealing  with  it  as  if  it  were 
in  his  actual  possession.  In  the  case 
of  Jewett  V.  Warren,  12  Mass.  300,  to 
which  we  were  also  referred,  no  ques- 
tion of  delivery  under  the  statute  of 
frauds  arose.  The  sale  was  not  an 
absolute  one,  but  a  pledge  of  the  pro- 
perty. The  cases  of  Elmore  r.  Stone  and 
Chaplin  ;•.  Rogers  are  the  most  barren  of 
acts  indicating  delivery,  but  these  are  not 
authority — for  the  doctrine  that  words, 
unarrompanied  lii/  acts  of  the  parties,  are 
sufficient  to  satisfy  the  statute.  Indeed, 
if  any  case  could  be  shown  which  ])ro- 
cceds  to  that  extent,  and  this  court 
should  be  inclined  to  follow  it,  for  all 
benelicial  purposes,  the  law  might  as 


en.  IV.] 


STATUTE    OF   FKAUDS. 


323 


house,  (/')  or  making  an  entry  in  the  books  of  the  ware- 
house keeper,  (g-)  or  delivery,  with  indorsement,  of  a  bill  of 
lading,  (h)  or  even  of  a  receipt,  (i)     Or,  without  even  so 


well  be  stricken  from  our  statute  book  ; 
for  it  was  this  species  of  evidence,  so 
vague  and  unsatisfactory,  and  so  fruit- 
ful of  frauds  and  perjuries,  that  the 
legislature  aimed  to  repudiate.  So  far 
as  I  have  been  able  to  look  into  tlie 
numerous  cases  that  have  arisen  under 
the  statute,  the  controlling  principle  to 
be  deduced  from  them  is,  tluit  when  the 
menioranduni  is  dispensed  with,  the 
statute  is  not  satisfied  with  anything  but 
unequivocal  acts  of  the  parties ;  not  mere 
wortis,  that  are  liable  to  be  misunder- 
stood, and  misconstrued,  and  dwell  only 
in  the  imperfect  memory  of  witnesses. 
The  question  has  been,  not  whether  the 
words  used  were  sufficiently  strong  to 
express  the  intent  of  the  parties,  but 
whether  the  acts  connected  with  them, 
both  of  seller  and  buyer,  were  equivocal 
or  unequivocal.  Tiie  best  considered 
cases  hold  that  there  must  be  a  vesting 
of  the  possession  of  the  goods  in  the 
vendee,  as  absolute  owner,  discharged 
of  all  lien  for  the  price  on  the  part  of 
the  vendor,  and  an  ultimate  acceptance 
and  receiving  of  the  property  by  the 
vendee,  so  unequivocal  tliat  he  shall 
have  precluded  himself  from  taking  any 
objection  to  the  quantum  or  quality  of 
the  goods  sold.  But  will  proof  of  words 
alone  show  a  delivery  and  acceptance 
from  which  consequences  like  these  may 
be  reasonably  inferred  ^  Especially,  if 
those  words  relate  not  to  the  question  of 
delivery  and  acceptance,  but  to  the  con- 
tract it-elf?  A.  and  B.  verbally  con- 
tract for  the  sale  of  chattels,  for  ready 
moneyj  and  without  the  payment  of 
any  part  thereof,  A.  says,  "I deliver 
the|»roperty  to  you,"  or  "It  is  yours," 
but  there  are  no  acts  showing  a  change 
of  possession,  or  from  which  the  facts 
may  be  inferred.  B.  refuses  payment. 
Is  the  right  of  the  vendor,  to  retain 
possession  as  a  lien  for  the  price,  gone  ^ 
Or,  in  the  event  of  a  subsequent  disco- 
very of  a  defect  in  the  quantum  or  qual- 
ity of  the  goods,  has  B.  in  the  absence 
of  all  acts  on  his  part  showing  an  ulti- 
mate acceptance  of  the  possession,  con- 
cluded himself  from  taking  any  objec- 
tion'? I  think  not.  As  Justice  Cuwen 
remarks,  in  the  case  of  Archer  v.  Leh, 
5  Hill,  205,  "  One  object  of  the  statute 
was  to  prevent  perjury.     The  method 


taken  was  to  have  something  done  ;  not 
to  rest  every  thing  on  mere  oral  agree- 
ment." Tiie  acts  of  tiie  parties  must 
be  of  such  a  character  as  unequivocally 
to  place  the  property  within  the  power, 
and  under  the  exclusive  dominion  of 
the  buyer.  This  is  the  doctrine  of  tliose 
cases  that  have  carried  the  principle  of 
constructive  delivery  to  tiic  utmost 
limit." 

(/)  Wilkes  V.  Ferris,  5  Johns.  335  ; 
Chappel  V.  Martin,  2  Aik.  79. 

(y)  Harman  v.  Anderson,  2  Campb. 
243. 

(h)  Peters  v.  Ballister,  3  Pick.  495. 
See  next  note. 

(I)  Wilkes  V.  Ferris,  5  Johns.  335. 
And  see  Searle  v.  Keeves,  2  Esp.  598  ; 
Harman  v.  Anderson,  2  Camplj.  243; 
Withers  i\  Lyss,  4  id.  237  ;  Tucker  v. 
Ruston,  2  C.  &  P.  8G.  But  according 
to  the  later  English  cases,  there  must 
be,  in  addition  to  the  indorsement  and 
delivery  of  the  bill  of  lading  or  receipt, 
a  consent  and  agreement  by  the  person 
having  the  custody  of  the  property,  to 
hold  it  for  the  party  so  receiving  the 
bill  of  lading  or  receipt.  Thus,  in 
Farira  v.  Hone,  16  M.  &  \V.  119,  goods 
were  shipped  by  the  plaintiti"  from  abroad 
to  this  country,  on  tlie  verbal  order  of 
the  defendant,  at  a  price  exceeding  10/. 
They  were  sent  to  a  shipping  agent  of 
the  plaintiff,  in  London,  who  received 
them  and  warehoused  them  witii  a 
wharfinger,  informing  the  defendant  of 
their  arrival.  The  wharfinger  handed 
to  the  shipping  agent  a  delivery  war- 
rant, whereby  the  goods  were  made 
deliverable  to  him  or  his  assignees  by 
indorsement,  on  payment  of  rent  and 
charges.  The  agent  indorsed  and  de- 
livered this  warrant  to  the  defendant, 
who  kept  it  for  several  montiis,  and, 
notwithstanding  repeated  applications, 
did  not  pay  the  price  of  or  char-es  upon 
the  goods,  nor  return  the  warrant,  but 
said  he  had  sent  it  to  his  solicitor,  and 
that  he  intended  to  resist  payment,  for 
that  he  had  never  ordered  tlie  goods ; 
and  that  they  would  remain  for  the  pre- 
sent in  bond  : — IJcId,  that  there  was  no 
such  delivery  to,  and  acceptance  by  the 
defendant  of  the  goods,  as  to  satisfy  the 
17tli  section  of  the  statute  of  frauds. 
And  Par/je   B.,  said,  ''  This  warrant  is 


324 


THE   LAW    OF   CONTRACTS. 


[part  II. 


much  as  this,  where  the  goods  are  bulky  and  difficult  of 
access  or  removal,  as  a  quantity  of  timber  floating  in  a  boom, 
or  a  mass  of  granite,  or  a  large  stack  of  hay.  (/)  So  a  part 
may  be  delivered  for  the  whole,  and  in  general  a  delivery  of 
part  is  a  delivery  of  the  whole,  if  it  be  an  integral  part  of  one 
whole,  (A-)  but  not  if  many  things  are  sold  and  bought  as  dis- 
tinct articles,  and  some  of  them  are  delivered  and  some  are 
not.  (/) 

And  a  sale  by  sample  is  not  a  sale  with  delivery,  if  the 
sample  be  first  sent  and  afterwards  the  sale  completed.  But 
after  a  sale  is  made,  a  part  of  the  goods  may  be  delivered 
nominally  as  a  sample,  but  yet  so  as  to  make  it  a  part 
delivery  and  acceptance.  (?«)  We  think  that  if  the  seller  does 
in  any  case,  what  is  usual,  or  wMiat  the  nature  of  the  case 
makes  convenient  and  proper,  to  pass  the  efl'ectual  control  of 
the  goods  from  himself  and  to  the  buyer,  this  is  always  a 
delivery ;  and  nothing  less  than  this  is  so. 

In  like  manner  as  to  the  question  of  acceptance,  we  must  in- 
quire into  the  intention  of  the  buyer,  the  nature  of  the  goods, 
and  the  circumstances  of  the  case.  If  the  buyer  intends  to 
retain  possession  of  the  goods,  and  manifests  this  intention 
by  a  suitable  act,  it  is  an  actual  acceptance  of  them  ;  (w)  al- 
though this  intention  may  be  manifested  by  a  great  variety 


no  more  than  an  engagement  by  the 
wharfinger  to  deliver  to  the  consignee, 
or  any  one  he  may  appoint;  and  the 
wharfinger  holds  the  goods  as  the  agent 
of  the  consignee  (wlio  is  the  vendor's 
agent),  and  his  possession  is  that  of  the 
consignee,  nntil  an  assignment  lias  taken 
place,  and  the  wharfinger  Inis  attorned, 
so  to  speak,  to  the  assignee,  and  agreed 
with  him  to  hold  for  him.  Then,  and 
not  till  then,  the  wharfinger  is  the  agent 
or  bailee  of  the  assignee,  and  his  pos- 
session tlnit  of  the  assignee,  and  then 
only  is  there  a  constrnctive  delivery  to 
liim.  In  the  meantime  the  warrant, 
and  the  indorsement  of  the  warrant,  is 
nothing  more  than  an  ofi'er  to  hold  tlie 
goods  as  the  warehouseman  of  tlic 
assignee."  And  see  Bentall  ?;.  Burn,  3 
B.  &  Cr.  423;  Lackington  v.  Atherton, 
7  M.  &  Gr.  3G0. 

(/)  Jcwctt  V.  Warren,  12  Mass.  300; 
Boynton  v.  Vcasie,  24  Maine,  2SG  ;  Gib- 
son V.  Stevens,  8  How.  384 ;    Calkins 


V.  Lockwood,  17  Conn.  154.  But  see 
Sliindler  v.  Houston,  1  Denio,  48,  1 
Comst.  261. 

{/:)  Slubey  v.  Hcyvvard,  2  11.  Bl.  504; 
Hammond  v.  Anderson,  4  B.  &  P.  69  ; 
Elliott  V.  Thomas,  3  M.  &  W.  170; 
Scott  V.  The  P^astern  Counties  liaihvay 
Co.  12  M.  &  W.  33  ;  Biggs  v.  Wishing, 
25  E.  L.  &  E.  257  ;  Mills  v.  Hunt,  20 
Wend.  431  ;  Davis  v.  Moore,  13  Maine, 
424. 

(0  Price  V.  Lea,  1  B.  &  Cr.  156  ;  Sey- 
mour ih  Davis,  2  Sandl'.  239. 

(/«)  In  other  words,  tlie  delivery  of  a 
sample,  which  is  no  part  of  the  thing 
sold,  will  not  take  a  sale  out  of  tlie 
statute,  but  if  the  sample  be  delivered 
as  part  of  the  bulk,  it  then  binds  the 
contract.  Talver  r.  West,  Holt,  N.  P. 
178;  Johnson  v.  Smitii,  Anthon,  N.  P. 
GO ;  Ilinde  v.  AVhitehouse,  7  East,  558. 

(«)  Baincs  r.  Jcvons,  7  C.  &  P.  288 
Saunders  v.  Topp,  4  Exch.  390. 


en.  IV.] 


STATUTE    OF   FRAUDS. 


325 


of  acts,  in  accordance  with  the  varying  circnmsfanccs  of 
different  cases.  He  has  a  right  to  examine  the  goods,  and 
ascertain  their  quality,  before  he  determines  whether  to 
accept  or  not ;  and  a  retention  by  him  for  a  time  suflicient 
for  this  examination,  and  no  more,  is  not  an  acceptance,  (o) 
It  is  a  question,  perhaps  of  some  difficulty,  how  far  such 
intention  on  the  part  of  the  buyer,  and  a  corresponding  act, 
are  consistent  with  his  reserving  the  right  of  making  any 
future  objection  to  the  goods,  on  the  score  of  quantity 
or  quality,  and  rescinding  the  sale  on  such  ground.  The 
greater  number  of  decisions  declare  such  reservation  to  be 
incompatible  with  acceptance  and  actual  receipt,  and  hold 
therefore  that  while  the  buyer  retains  this  right,  he  has  not 
accepted  the  goods  under  the  statute,  [p)  But  a  recent  deci- 
sion of  much  weight  insists  upon  what  seems  to  be  the  oppo- 
site doctrine,  (q)     We  think,  however,  the  seeming  conflict 


(o)  Percival  r.  Blake,  2  C.  &  P.  514  ; 
Kent  V.  Iliiskiiison,  3  B.  &  P.  233 ; 
Phillips  V.  Bistolli,  2  B.  &  Cr.  511. 

(p)  Per  Parke,  J.,  in  Smith  v.  Siir- 
man,  9  B.  &  Cr.  561,  577;  Norman  v. 
Phillips,  14  M.  &  W.  277:  Howe  v. 
Palmer,  3  B.  &  Aid.  321  ;  Hanson  v. 
Armitage,  5  B.  &  Aid.  557  ;  Acebal  v. 
Levy,  10  Bing.  376 ;  Cunliffe  i\  Harrison, 
6  Exch.  903;  Curtis  v.  Pugh,  10  O.  B. 
Ill  ;  Cutwater  v.  Dodge,  6  Wend.  397. 

(7)  Morton  v.  Tibbett,  15  Q.  B.  428. 
This  was  an  action  brought  to  recover 
the  price  of  fifty  quarters  of  wheat.  It 
appeared  that  on  the  25th  of  August, 
1848,  the  plaintiff  and  defendant  being 
at  March  market,  the  plaintiff  sold  the 
wheat  to  the  defendant  by  sample.  The 
defendant  said  that  he  would  send  one 
Edgley,  a  general  carrier  and  lighter- 
man, on  the  following  morning,  to  re- 
ceive the  residue  of  the  wheat  in  a 
lighter,  for  tlie  purpose  of  conveying  it 
by  water,  from  March,  Avhcre  it  then 
was,  to  AVisbeach ;  and  the  defendant 
himself  took  tlie  sample  away  with 
him.  On  26th  August,  Edgley  received 
the  wheat  accordingly.  On  the  same 
day  the  defendant  sold  the  wheat,  at  a 
profit,  by  tlie  same  sample,  to  one 
Hampson,  at  Wisbeach  market.  The 
wheat  arrived  at  Wisbeach,  in  due  course, 
on  the  evening  of  Monday,  the  28th 
August,  and  was  tendered  by  Edgley 
to  Hampson  on  the  following  morning, 

VOL.  II.  28 


when  he  refused  to  take  it,  on  the  ground 
that  it  did  not  correspond  with  the  sam- 
ple. Up  to  this  time  tlie  defendant  had 
not  seen  the  wheat ;  nor  liad  any  one 
examined  it  on  his  behalf  Notice  of 
Hampson's  repudiation  of  his  contract 
was  given  to  the  defendant ;  and  the 
defendant,  on  Wednesday,  the  30th  Au- 
gust, sent  a  letter  to  the  plaintiff  repu- 
diating his  contract  with  him  on  the 
same  gronnd.  Tliere  being  no  memo- 
randum in  writing  of  the  contract,  it 
was  objected  for  the  defendant  that  there 
was  no  evidence  of  acceptance  and  re- 
ceipt, to  satisfy  the  requirements  of  the 
statute  of  frauds.  Pollock,  C.  B.,  be- 
fore whom  the  case  was  tried,  over- 
ruled the  objection,  and  a  verdict  was 
found  for  the  plaintiff.  Afterwards,  tlie 
case  being  brought  before  the  Queen's 
Bench,  on  a  motion  to  enter  a  nonsuit, 
pursuant  to  leave  reserved  at  the  trial, 
Lord  Campbell,  in  delivering  the  judg- 
ment of  the  court,  said,  '•  In  this  case 
the  question  submitted  to  us  is,  whether 
there  was  any  evidence  on  which  the 
jury  could  be  justified  in  finding  that 
the  buyer  accepted  the  goods,  and  actu- 
ally received  the  same,  so  as  to  render 
him  liable  as  buyer,  although  he  did  not 
give  anything  in  earnest  to  bind  the 
bargain,  or  in  part  iiaymcnt,  and  there 
was  no  note  or  memorandum,  in  writ- 
ing, of  the  bargain.  Jt  Avould  be  very 
dilBcult  to  reconcile  the  cases  on  this 


326 


THE    LAW   OF    CONTRACTS. 


[part   II. 


comes  from  confounding  two  questions  which  are  distinct. 
If  the  buyer  accepts  and  actually  receives  the  goods  with  a 


subject ;  and  the  ilirt\'rence  between 
them  may  be  accounted  for  by  tlic  exact 
words  of  the  ITtli  section  of  the  statute 
of  frauds  not  having  been  always  had  in 
recollection.  Judges,  as  well  as  counsel, 
have  supposed  that,  to  dispense  with  a 
written  memorandum  of  the  bargain, 
there  must  first  have  been  a  receipt  of 
the  goods  by  the  buyer,  and,  after  that, 
an  actual  acceptance  of  the  same. 
Hence,  perhaps,  has  arisen  the  notion 
that  there  must  have  been  such  an 
acceptance  as  would  preclude  the  buyer 
from  questioning  the  quantity  or  quality 
of  the  goods,  or  in  any  way  disputing 
that  the  contract  has  been  fully  per- 
formed by  the  vendor.  But  the  words 
of  the  act  of  parliament  are ;  [here  his 
lordship  stated  the  whole  of  the  I7th 
section.]  It  is  remarkable  that,  notwith- 
standing the  importance  of  having  a 
written  memorandum  of  the  bargain, 
the  legislature  appears  to  have  been 
willing  that  this  might  be  dispensed 
with,  when  by  mutual  consent  there  has 
been  part  performance.  Hence,  the 
payment  of  any  sum  in  earnest,  to  bind 
the  bargain,  or  in  part  payment,  is  suffi- 
cient. This  act  on  the  part  of  the  buyer, 
if  acceded  to  on  the  part  of  the  vendor, 
is  sufficient.  The  same  effect  is  given 
to  the  corresponding  act  by  the  vendor, 
of  delivering  part  of  the  goods  sold  to 
the  buyer,  if  the  buyer  shall  accept  such 
part,  and  actually  receive  the  same. 
As  part  payment,  however  minute  the 
same  may  be,  is  sufficient,  so  part  de- 
livery, however  minute  the  portion 
may  be,  is  sufficient.  This  shows  con- 
clusively that  the  condition  imposed 
was  not  the  complete  fuliilnient  of  the 
contract,  to  the  satisfaction  of  the  buyer. 
In  truth,  the  effect  of  fulfilling  the  con- 
dition is  merely  to  waive  written  evi- 
dence of  the  contract,  and  to  allow  the 
contract  to  be  established  by  parol,  as 
before  the  statute  of  frauds  passed. 
The  question  may  then  arise,  whether 
it  has  been  performed,  either  on  the  one 
side  or  the  other.  The  acceptance  is 
to  be  something  wiiich  is  to  precede,  or 
at  any  rate  to  be  contemporaneous  with, 
the  actual  receipt  of  the  goods,  and  is 
not  to  be  a  subsequent  act,  after  the 
goods  have  been  actually  received, 
weighed,  measured,  or  examined.  As 
the  act  of  parliament  expressly  makes 
the  acceptance  and  actual  receipt  of  any 


part  of  the  goods  sold  sufficient,  it  must 
be  open  to  the  buyer,  at  all  events,  to  ob- 
ject to  the  quantity  and  quality  of  the 
residue,  and,  even  where  there  is  a  sale 
by  sample,  that  the  residue  offered  does 
not  correspond  with  the  sample.  We 
are,  therefore,  of  opinion  that,  whether 
or  not  a  delivery  of  the  goods  sold,  to  a 
carrier  or  any  agent  of  the  buyer,  is 
sufficient,  still  there  may  be  an  accept- 
ance and  receipt,  within  the  meaning  of 
the  act,  without  the  buyer  havin"-  ex- 
amined the  goods,  or  done  anything  to 
preclude  him  from  contending  that  they 
do  not  correspond  with  the  contract. 
The  acceptance,  to  let  in  parol  evidence 
of  the  contract,  appears  to  us  to  be  a 
different  acceptance  from  that  which 
affords  conclusive  evidence  of  the  con- 
tract having  been  fulfilled.  We  are, 
therefore,  of  opinion,  in  this  case,  that, 
although  the  defendant  had  done  no- 
thing which  would  have  precluded  him 
from  objecting  that  the  wheat  delivered 
to  Edgley  was  not  according  to  the  con- 
tract, there  was  evidence  to  justify  the 
jury  in  finding  that  the  defendant  ac- 
cepted and  received  it."  His  lordship 
then  proceeded  to  examine  most  of  the 
cases  cited  in  the  preceding  note,  and 
arrived  at  the  conclusion  that  they  were 
not  sufficiently  strong  to  control  the 
action  of  the  court ;  and  the  rule  for  a 
nonsuit  was  accordingly  discharged. 
Since  the  decision  of  this  case,  the  case 
of  Hunt  V.  Hecht,  20  E.  L.  &  E.  524,  has 
been  decided  in  the  Court  of  Exchequer. 
That  was  an  action  for  goods  sold  and 
delivered.  On  the  trial  it  appeared  that 
one  of  the  defendants,  wlio  were  part- 
ners, called  on  the  plaintiff,  a  bone-mer- 
chant, for  the  purpose  of  buying  bones. 
He  tliere  saw  a  heap  containing  a  quan- 
tity of  the  kind  he  desired  to  buy,  but  in- 
termixed with  others  which  were  unfit  for 
manufacturing  purposes.  He  ultimately 
agreed  with  the  plaintiff  to  buy  the  heap, 
if  the  objectionable  bones  were  taken 
out.  It  was  arranged  between  tliera 
that  the  plaintiff  should  deliver  the 
bones  at  Brewer's  Quay,  in  sacks, 
marked  in  a  j)articular  way ;  and  the 
defendant  gave  the  plaintitf  a  shipping 
note,  or  order,  directed  to  tlie  wharfinger, 
requesting  him  to  receive  and  ship  the 
goods,  when  the  ])laintiff'  should  send 
them.  The  plaintilfsent  the  bags  accord- 
ingly, marked  as  requested.    They  were 


CH.  IV.]  STATUTE    OP   FRAUDS.  327 

knowledge  of  their  deficiency  in  quality,  or  quantity,  and 
without  objection,  he  waives  all  right  of  future  objection  on 
this  ground.  If  he  accepts  the  same  goods  in  the  same  way, 
without  a  knowledge  of  a  deficiency  which  gives  him  a  right 
of  objection,  and  subsequently  acquires  this  knowledge,  he 
cannot  return  the  goods  and  defend  against  an  action  for 
the  price,  under  the  statute,  because  the  whole  requirement 
of  the  statute  has  been  satisfied ;  but  he  may,  at  common 
law,  whether  the  contract  of  sale  were  oral  or  written,  on 
the  ground  that  the  seller  did  not  send  or  deliver  to  him 
what  he  bought.  If  the  buyer  expressly  declares  that  he 
reserves  the  right  of  examining  and  objecting,  this,  perhaps, 
should  be  regarded  rather  as  a  conditional  acceptance,  which 
becomes  complete  and  actual  only  when  the  condition  has 
been  satisfied. 

A  question  has  been  made  whether  a  delivery  by  the  vendor 
to  a  carrier,  satisfies  the  statute.  The  general  question  of 
the  effect  of  delivery  to  a  carrier,  has  been  considered  in  the 
chapter  on  the  sale  of  personal  property,  (r)  Here,  it  is  only 
necessary  to  remark,  that  the  delivery  to  a  common-carrier 

delivered  at  the  wharf,  and  received  by  must  be  an  acceptance  after  the  separa- 
the  wharfinger,  on  Wednesday,  the  9th  tion.  He  must  have  an  opportunity  of 
of  February,  but  the  defendants  did  refusing  what  the  vendor  may  have 
not  hear  of  their  being  sent  until  the  selected.  Here  there  was  a  delivery, 
following  day,  when  the  invoice  was  but  no  acceptance."  Martin,  B. — "  The 
received.  The  defendants  then  exam-  question  is,  whether  the  defendants  ae- 
ined  the  bones  and  wrote  to  the  plain-  cepted  part  of  the  goods  sold,  and  actu- 
tiff  comi)laining  of  their  quality,  and  ally  received  tlie  same.  The  contract 
declining  to  accept  them.  Upon  this  was  for  such  bones  in  the  heap  as  were 
evidence,  Martin,  B.,  before  whom  tlic  ordinarily  merchantable,  and  they  were 
case  was  tried,  nonsuited  the  plaintiff,  only  bound  to  accept  such  merchanta- 
And  the  Court  of  Exche((uer/(e/(/ that  the  ble  bones.  Directions  were,  no  doubt, 
nonsuit  was  right.  Pollock,  C.  B.,  said,  given  to  the  wharfinger,  to  receive  the 
"  The  goods  were  received  by  the  per-  bones,  and  in  one  sense  they  were  re- 
son  appointed  by  the  defendants,  but  ceivcd;  l)ut  this  was  not  an  acceptance 
they  were  not  at  any  time  accepted,  witliin  the  statute.  There  is  no  ac- 
The  defendants  never  saw  them  when  ceptance  unless  the  purchaser  has  exer- 
they  were  in  a  state  to  be  accepted,  be-  cised  his  option,  or  has  done  something 
cause  they  had  not  been  separated.  A  that  has  deprived  him  of  his  option, 
man  does  not  accept  flour  by  looking  Morton  ;•.  Tibbctt  is  a  correct  decision, 
at  the  wheat  that  is  to  be  ground.  The  because  the  purchaser  had  tliere  dealt 
article  must  be  in  a  condition  to  be  with  the  goods  as  his  own,  but  much 
accepted.  There  was  no  evidence  of  tliat  is  said  in  that  case  may  be  open  to 
any  acceptance  of  tliese  bones,  for  the  doubt.  The  decisions,  in  my  opinion, 
dei^endants  never  saw  them  after  the  show  that  the  acceptance  must  be  after 
separation  had  taken  place."  Alderson,  the  purchaser  has  exercised  his  option, 
B., — "  If  a  man  buys  a  quantity  out  of  or  has  done  somctliing  to  preclude  him- 
a  larger  bulk,  he  does  not  buy  it  until  self  from  doing  so." 
it  is  separated  from  the  rest ;  and  there        (r)  Sec  ante,  vol.  1,  p.  445, 


328 


THE  LAW   OF   CONTRACTS. 


[part  II. 


has  been  held  to  be  such  passing  of  the  property  out  of  the 
possession  and  control  of  the  seller,  as  satisfies  the  statute, 
although  the  carrier  is  for  some  purposes  the  agent  of  the 
seller,  who  retains  his  lien,  or  quasi  lien,  by  his  right  to  stop 
the  goods  in  transitu,  (s)  We  think  this  open  to  much 
doubt ;  and  certainly,  though  it  may  be  a  delivery,  it  is  not 
yet  an  acceptance  by  the  buyer.  But  if  the  buyer  designates 
a  person  as  his  carrier,  (although  this  person's  occupation 
may  be  that  of  a  common-carrier)  and  directs  the  seller  to 
deliver  the  goods  as  the  buyer's,  to  this  person,  then  it  might 
be  held  that  the  delivery  was  made  to  the  buyer  through  an 


(s)  Hart  I'.  Sattley,  3  Campb.  524. 
This  was  an  action  to  recover  the  price 
of  a  hogshead  of  gin.  The  plaintiffs 
were  spirit  merchants  in  London,  who 
had  been  in  the  habit  of  suppl^'ing  spirits 
to  the  defendant,  a  publican,  near  Dart- 
mouth, in  Devonshire.  In  these  previ- 
ous dealings  the  course  had  been  for  the 
plaintiff'  to  ship  the  goods  on  board  a 
Dartmoutli  trader,  in  the  river  Thames, 
and  the  defendant  had  alwaj's  received 
them.  The  hogshead  of  gin  in  question 
was  verbally  ordered  by  tlie  defendant 
of  the  plaintiff's  traveller,  and  was  ship- 
ped in  the  same  manner  as  the  others 
had  been.  Tliere  was  no  evidence 
cither  that  it  had  been  delivered  to  the 
defendant  in  Dcvonsiiire,  or  tiiat  he  re- 
fused to  accept  it.  On  the  trial,  before 
Chamhre.  J.,  the  statute  of  frauds  being 
relied  on  in  defence,  the  learned  judge 
said,  "  I  think,  under  the  circumstances 
of  this  case,  the  defendant  must  be  con- 
sidered as  having  constituted  the  mas- 
ter of  the  ship  his  agent,  to  accept  and 
receive  the  r/oods.''  His  lordsliij)  would 
seem  to  have  rested  his  opinion,  in  some 
degree,  upon  tlie  previous  course  of  deal- 
ing between  the  parties.  But  the  case 
must  lie  considered  a.*;  overruled  liysub- 
scfjuent  decisions.  Thus,  in  Hanson  v. 
Armitage,  .5  B.  &  Aid.  ,5.'37,  it  appeared 
that  tlie  plaintiU's,  mcrcliants  in  Lon- 
don, had  been  in  the  habit  of  selling 
goods  to  the  defendant,  resident  in  the 
country,  and  of  delivering  them  to  a 
Avharfinger  in  London,  to  be  forwarded 
to  the  defendant  by  the  first  ship.  In 
jiursuance  of  a  parol  order  from  the 
defendant,  goods  were  delivered  to,  and 
accepted  by  the  wai-finger,  to  be  for- 
wanlerl  in  the  usual  manner.  Held, 
that  this  not  being  an  acceptance  by  the 


buyer,  was  not  sufficient  to  take  the  case 
out  of  the  statute.  And  in  the  recent  case 
of  Meredith  v.  Meigh,  2  El.  &  Bl.  364, 
the  facts  were  that  goods  were  delivered 
by  the  vendor,  in  Cornwall,  on  board  a 
ship  not  named  by  the  purchaser,  and 
a  bill  of  lading  was  signed  by  the  cap- 
tain, making  them  deliverable  to  carriers 
at  Liverpool,  named  by  the  purchaser, 
for  the  purpose  of  receiving  and  for- 
warding the  goods  to  him,  in  Stafford- 
shire. A  copy  of  the  bill  of  lading  was 
sent  to  the  carriers  at  Liverpool,  and  on 
the  25tli  of  April  the  purchaser  received 
notice  of  the  shipment  of  the  goods,  and 
did  not  repudiate  the  contract  before 
the  6th  May,  when  he  received  infor- 
mation from  the  vendor  that  the  ship 
and  the  goods  were  lost  before  they 
reached  Liverpool.  In  an  action  by  the 
vendor  for  the  price  of  the  goods,  it  was 
held,  that  there  w.as  no  evidence  to  go 
to  the  jury  of  an  acceptance  and  actual 
receipt  of  the  goods  by  the  defendant, 
within  the  statute  of  frauds.  And 
Lord  Campbell  said,  "  Considering  that 
no  ship  was  named  by  the  vendee,  the 
mere  delivery  of  the  goods  on  board  the 
Marietta,  and  the  signinjj  the  bill  of 
lading  by  the  captain,  was  not  sufficient 
acceptance  and  receipt  within  the  sta- 
tute. Hart  V.  Sattley,  3  Campb  528,  if 
it  be  supj)osed  to  lay  down  such  law, 
must  be  considered  to  have  been  over- 
turned by  subsequent  decisions,  in  which 
I  concur."  And  Crompton,  J.,  said, 
"  The  delivery  of  goods  to  a  carrier  fov 
the  purpose  of  being  carried,  or  to  a 
wharfinger  to  be  forwarded  to  the  vendee 
by  the  first  ship,  in  the  usual  manner, 
is  not  evidence  of  an  acceptance  and 
receipt,  within  the  statute  of  frauds." 
And  sec  Acebal  v.  Levy,  10  Bing,  376. 


en.  IV.] 


STATUTE    OF   FRAUDS. 


329 


agent,  and  an  acceptance  made  by  the  buyer  through  an 
agent,  (t)  But  whether  a  designation  of  the  carrier,  and 
an  order  to  deliver,  and  a  compliance  on  the  part  of  the  seller, 
be  such  as  to  have  this  effect,  must  depend  upon  the  inten- 
tions and  acts  of  the  parties,  and  the  circumstances  of  each 
case,  (u) 


(i)  See  Coats  v.  Chaplin,  3  Q.  B.  483. 

(«)  In  Bushel  v.  Wheeler,  15  Q.  B. 
442,  n.,  the  defendant  livinj,'  at  Here- 
ford, ordered  goods,  at  a  price  aliove 
10/.,  of  the  plaintiff,  living  at  Bristol, 
and  directed  that  they  should  be  sent 
by  The  Hereford,  sloop,  to  Hereford. 
They  were  sent  accordingly  ;  and  a  let- 
ter of  advice  was  also  sent  to  the  de- 
fendant, with  an  invoice,  stating  the 
credit  to  be  three  months.  On  their 
arrival  at  Hereford,  tliey  were  placed 
in  the  warehouse  of  the  owner  of  the 
sloop,  where  the  defendant  saw  them ; 
and  he  then  said  to  the  warehouseman 
that  he  would  not  take  them;  but  he 
made  no  communication  to  the  plaintiff 
till  the  end  of  five  months,  when  he  re- 
pudiated the  goods.  In  an  action  for 
the  price  of  the  goods,  the  judge  before 
whom  the  cause  was  tried,  having  in- 
structed the  jury  that  there  was  no  ac- 
ceptance and  actual  receipt  sufficient  to 
satisfy  the  statute  of  frauds,  it  was  held, 
that  this  instruction  was  erroneous,  and 
that  he  should  have  left  them  to  find, 
upon  tliese  facts,  whether  or  not  there 
had  been  such  acceptance  and  actual 
receipt.  And  Lord  Z>e?i7rt««  said,  "The 
general  intention  of  the  statute  is,  that 
there  should  be  a  writing;  this,  as  well 
as  the  exception  for  the  case  of  delivery 
and  acceptance,  has  been  construed  lite- 
rally. Still,  it  must  be  a  question  whe- 
ther there  has  been  an  acceptance  and 
actual  receipt.  It  is  not  necessary  that 
the  purchaser  himself  should  form  a 
judgment  on  the  article  sent;  he  may 
depute  another  to  do  so  ;  or  he  may 
rely  upon  the  seller.  The  defendant 
here  orders  the  goods  to  be  sent  by  a 
particular  vessel  which  he  names,  and 
he  receives  the  invoice,  which  states  a 
three  months'  credit.  He  allows  the 
goods  to  remain  till  that  credit  is  ex- 
pired, giving  no  notice  to  the  seller, 
though  he  did  say  to  his  own  agent 
that  he  would  not  take  them.  Now, 
such  a  lapse  of  time,  connected  with  the 
other  circumstances,  might  show  an 
acceptance  ; — whether  there  was  an  ac- 

28* 


ceptance  or  not,  is  a  question  of  fact. 
I  do  not  think  that  the  mere  taking  by 
the  carrier  is  a  receipt  by  the  vendee ; 
but  the  jury  here  should  have  been  al- 
lowed to  exercise  a  judgment  on  the 
question  whether  there  was  an  actual 
I'eceipt."  Williams,  J.  "  When  it  is 
once  settled  that  manual  occupation  is 
not  essential  to  an  actual  receipt,  and  it 
is  not  now  contended  that  it  is,  it  be- 
comes a  question  whether  there  have 
been  circumstances  constituting  an  ac- 
tual receipt.  The  larger  the  bulk,  the 
more  impracticable  it  is  that  there  should 
be  a  manual  receipt;  something  there 
must  be  in  the  nature  of  constructive 
receipt,  as  there  is  constructive  delivery. 
It  being  then  once  established  that  there 
may  be  an  actual  receipt  by  a(;qui- 
escence,  wherever  such  a  case  is  set  up 
it  becomes  a  question  for  the  jury  whe- 
ther there  is  an  actual  receipt.  And  all 
the  facts  must  be  submitted  to  their 
consideration,  for  the  determination  of 
that  question."  Coleridge,  J.  "  I  agree 
that  the  acceptance  must  be,  in  the 
words  of  one  of  the  cases  cited,  '  strong 
and  unequivocal.'  Maberley  r.  Shep- 
pard,  10  Bing.  101.  But  that  is  quite 
consistent  with  its  being  constructive. 
Therefore,  in  almost  all  cases,  it  is  a 
question  for  the  jury,  whether  particular 
instances  of  acting  or  forbearing  to  act, 
amount  to  acceptance  and  actual  re- 
ceipt. Here  goods  are  ordered  by  the 
vendee  to  be  sent  by  a  particular  car- 
rier, and,  in  effect,  to  a  particular  ware- 
house ;  and  that  is  done  in  a  reasonable 
time.  That  comes  to  the  same  thing  as 
if  they  had  been  ordered  to  be  sent  to 
the  vendee's  own  house,  and  sent  ac- 
cordingly. In  such  a  case  the  vendee 
would  have  had  the  right  to  look  at  the 
goods,  and  to  return  them  if  they  did 
not  correspond  to  order.  But  here  the 
vendee  takes  no  notice  of  the  arrival, 
and  makes  no  communication  to  the 
party  to  whom  alone  a  communication 
was  necessary.  The  question  must  go 
to  the  jury."  But  see  this  case  com- 
mented on,  in  Norman  v.  Phillips,  14 


330 


THE   LAW   OF   COXTRACTS. 


[part   II. 


It  has  been  much  doubted  whether  a  contract  for  the  sale  of 
stock  or  shares  in  a  corporation  or  joint-stock  company,  was 
within  the  statute.  The  question  is,  are  they  "  goods,  wares, 
or  merchandises  ?  "  and  the  English  authorities  deny  this  ;  (v) 
in  some  degree  on  the  ground  of  a  supposed  analogy  with 
the  bankrupt  law,  within  which  the  purchasing  of  stock  does 
not  bring  one,  unless  the  purchase  was  for  the  purpose  of 
trading  in  it,  as  by  brokers.     Bat  it  has  been  decided,  in  this 


M.  &  W.  207.  In  Snow  v.  Warner,  10 
Met.  132,  it  was  held  that  goods  are 
received  and  accepted  by  the  purchaser, 
within  the  statute  of  frauds,  when  they 
are  transported  by  the  seller  to  the  place 
of  delivery  appointed  by  the  agent  who 
contracted  for  them,  and  are  there  de- 
livered to  another  agent  of  the  pur- 
chaser, and  are  by  him  shipped  to  a 
port  wlaere  the  purchaser  had  given  him 
general  directions  to  ship  goods  of  the 
same  kind.  And  Hubbard,  J.,  in  that 
case  said,  "  The  authorities  cited  by  the 
defendant's  counsel,  and  upon  which  he 
relics,  go  to  establish  the  doctrine  that 
a  constructive  delivery  to  a  wharfinger, 
or  a  shipmaster,  or  to  other  persons  en- 
gaged in  receiving  the  goods  of  others, 
will  not  be  a  compliance  with  the  stat- 
ute of  frauds,  to  bind  the  party  as  hav- 
ing accepted  the  goods.  There  was 
also,  apparently,  a  leaning  in  the  mind 
of  Lord  Chief  Justice  Abbott,  to  the 
opinion  that  the  terms  of  the  statute 
must  be  literally  complied  with  ;  that  is, 
that  there  must  be  an  acceptance  of  the 
goods  by  the  purchaser  himself.  Han- 
son V.  Arniitage,  1  Dowl.  &  liyl.  131. 
We  arc  fully  of  opinion  that  the  accept- 
ance must  be  proved  by  some  clear  and 
nnivocal  act  of  the  party  to  be  charged. 
The  statute,  by  its  language,  requires  it, 
and  the  construction  it  has  received 
gives  full  force  to  that  language.  But 
we  cannot  say  that,  to  bind  the  pur- 
chaser, the  acceptance  can  only  be  by 
him  personally.  The  statute,  in  terms, 
provides  that  an  agent  may  bind  his 
principal  by  a  memorandum  in  writing. 
If,  then,  an  agent  can  purchase,  we 
think  it  clearly  follows  —  there  being 
no  prohibitory  clause  —  that  an  agent 
duly  authorized  may  also  receive  pro- 
perty purchased,  and  thus  bind  the  prin- 
cipal. It  is  in  accordance  with  the 
rights  and  duties  of  principals  and 
agents,  in  other  cases,  and  for  the  fur- 
therance of  trade   and  commerce.     In 


the  present  case,  it  was  proved  that  the 
plaintiffs  transported  the  barrels  to  Bos- 
ton, and  delivered  them  at  the  place 
where  the  purchaser's  agent  directed, 
and  that  the  agent  in  Boston  afterwards 
shipped  them  to  the  port  at  the  South, 
where  the  defendant  had  given  general 
directions  to  have  his  barrels  sent ;  and 
we  are  of  opinion,  with  the  learned 
judge  who  tried  the  cause  in  the  court 
below,  that  this  was  a  sufficient  accept- 
ance of  the  goods,  within  the  statute. 
There  was  a  delivery  by  the  vendors 
to  an  agent  authorized  to  receive,  an 
acceptance  by  him,  and  a  forwarding  of 
them  to  the  place  appointed  by  the 
principal.  These  acts  are  direct  and 
unequivocal,  and  constitute  a  transfer 
of  the  property  from  the  seller  to  the 
purchaser,  who,  in  consequence  of  it,  is 
bound  to  pay  the  price  of  the  purchase." 

{v)  Humble  v.  Mitchell,  11  Ad.  &  EI. 
205.  The  principle  upon  which  the 
English  cases  proceed,  is  thus  explained 
by  Sir  jL.  Shadicell,  in  Duncuft  v.  Al- 
brecht,  !l2  Sim.  189  ; — "  It  is  impressed 
upon  my  mind  that,  in  the  decisions 
which  have  been  made  with  respect  to 
the  17th  section,  it  has  been  held  to  ap- 
ply only  to  goods,  wares,  and  merchan- 
dises Avhich  are  capable  of  being  in  ])art 
delivered.  If  there  is  an  agreement  to 
sell  a  quantity  of  tallow  or  of  hemp, 
you  may  deliver  a  part ;  but  the  delivery 
of  a  part  is  not  a  transaction  applicable, 
as  I  apprehend,  to  such  a  subject  as 
railway  shares.  They  have  been  decid- 
ed not  to  be  land.  They  have  been  de- 
cided to  be,  in  effect,  personal  estate; 
but  not  personal  estate  of  the  quality  of 
goods,  wares,  and  merchandises,  with- 
in the  meaning  of  the  17th  section." 
And  see  further,  rickering  v.  Appleby, 
Comyns,  354  ;  Colt  v.  Nettcrvill,  2  P. 
Wms.  304;  Knight  v.  Barber,  16  M. 
&  W.  6G  ;  Ilcseltine  v.  Siggers,  I  Exch. 
856. 


CII.  IV.] 


STATUTE   OF   FRAUDS. 


331 


country,  that  a  sale  of  stock  in  a  manufacturing  company,  is 
within  the  statute;  (iv)  and  on  this  authority,  as  well  as  on 
general  principles,  we  should  suppose  that  the  sale  of  any 


(to)  Tisdale  v.  Harris,  20  Pick.  9.  In 
this  case  Shaw,  C.  J.,  said,  "  Supposing 
this  a  new  question,  now  for  tlic  first 
time  calling  for  a  construction  of  tiic 
statute,  the  court  are  of  opinion,  that, 
as  well  by  its  terms,  as  its  general 
policy,  stocks  arc  fairly  within  its  ope- 
ration. The  words  'goods'  and  'mer- 
chandise,' are  both  of  very  large  signi- 
fication. Bona,  as  used  in  the  civil  law, 
is  almost  as  extensive  as  personal  pro- 
perty itself,  and  in  many  respects  it  has 
nearly  as  large  a  signification  in  the 
common  law.  The  word  '  merchan- 
dise,' also,  including,  in  general,  objects 
of  traffic  and  commerce,  is  broad  enough 
to  include  stocks  or  shares  in  incorpo- 
rated companies.  There  arc  many  cases 
indeed  in  which  it  has  been  held  in  Eng- 
land, that  buying  and  selling  stocks  did 
not  subject  a  person  to  tlie  operation  of 
the  bankrupt  laws,  and  hence  it  has 
been  argued  that  they  cannot  be  con- 
sidered as  merchandise,  because  bank- 
ruptcy extends  to  persons  using  the 
trade  of  merchandise.  But  it  must  be 
recollected  that  the  bankrupt  acts  were 
deemed  to  be  highly  penal  and  coercive, 
and  tended  to  deprive  a  man  in  trade  of 
all  his  property.  But  most  joint-stock 
companies  were  founded  on  the  hypo- 
thesis, at  least,  that  most  of  the  share- 
holders took  shares  as  an  investment, 
and  not  as  an  object  of  trafiic  ;  and  the 
construction  in  question  only  decided, 
that  by  taking  and  holding  such  shares 
merely  as  an  investment,  a  man  should 
not  be  deemed  a  merchant,  so  as  to  sub- 
ject himself  to  the  highly  coercive  pro- 
cess of  the  bankrupt  laws.  Tliese  cases, 
therefore,  do  not  bear  much  on  the 
general  question.  The  main  argument 
relied  upon,  by  those  who  contend  that 
shares  arc  not  within  the  statute,  is  this: 
that  the  statute  provides  that  such  con- 
tract shall  not  be  good,  &c.,  among 
other  things,  except  the  purchaser  shall 
accept  part  of  the  goods.  From  this  it 
is  argued,  that  by  necessary  implication, 
the  statute  applies  only  to  goods,  of 
which  part  may  be  delivered.  This 
seems,  however,  to  be  rather  a  narrow 
and  forced  construction.  The  provi- 
sion is  general,  that  no  contract  for  the 


sale  of  goods,  &c.,  shall  be  allowed  to 
be  good.  The  exception  is,  when  part 
are  delivered;  but  if  part  cannot  be  de- 
livered, then  the  exception  cannot  exist 
to  take  the  case  out  of  the  general  pro- 
hibition. The  provision  extended  to  a 
great  variety  of  objects,  and  tlic  excep- 
tion may  well  be  construed  to  apply  on- 
ly to  such  of  those  objects  to  which  it  is 
applicable,  without  affecting  others,  to 
which,  from  their  nature,  it  cannot  ap- 
ply. There  is  nothing  in  the  nature  of 
stocks,  or  shares  in  companies,  which  in 
reason  or  sound  policy  should  exempt 
conti-acts  in  respect  to  them  from  those 
reasonaide  restrictions,  designed  by  the 
statue  to  prevent  frauds  in  the  sale  of 
other  commodities.  On  the  contrary, 
these  companies  have  become  so  numer- 
ous, so  large  an  amount  of  the  property 
of  the  community  is  now  invested  in 
them,  and  as  the  ordinary  indicia  of 
property,  arising  from  delivery  and  pos- 
session, cannot  take  place,  there  seems 
to  be  peculiar  reason  for  extending  the 
provisions  of  this  statute  to  them.  As 
they  may  properly  be  included  under 
the  terms  goods,  as  they  arc  within  the 
reason  and  policy  of  the  act,  the  court 
are  of  opinion,  that  a  contract  for  the 
sale  of  shares,  in  the  absence  of  the 
other  requisites,  must  be  proved  by  some 
note  or  memorandum  in  writing ;  and 
as  there  was  no  such  memorandum  in 
writing,  in  the  present  case,  the  plaintiff 
is  not  entitled  to  maintain  this  action." 
And  see,  to  the  same  effect,  Colvin  v. 
Williams,  3  H.  &  Johns.  38 ;  North  v. 
Forest,  15  Conn.  400 ;  So.  Life  Ins.  & 
Tr.  Co.  V.  Cole,  4  Florida,  359.  But 
the  decision  in  this  last  case  was  based, 
in  some  measure,  upon  the  fact  that  the 
Florida  statute  contains,  in  .addition  to 
the  words  used  in  the  English  statute, 
the  words,  "  personal  ])roperty."  In 
Baldwin  r.  Wilhams,  3  Met.  3G5,  it  was 
decided  that  a  contract  for  the  sale  of 
promissory  notes  is  within  the  statute. 
But  see  contra,  Whittemore  v.  Gibbs,  4 
Frost.  484.  So  also,  in  Beers  v.  Crow- 
ell,  Dudley,  [Geo.]  28,  it  was  decided 
that  treasury  checks  on  the  bank  of 
the  United  States  were  not  within  the 
statute. 


332  THE  LAW  OF  CONTRACTS.  [PART  II. 

incorporated  stock  would  be  held  within  the  operation  of  the 
statute,  (x) 

We  will  next  inquire  what  giving  in  earnest,  or  in  part 
payment,  satisfies  the  requirement  of  the  statute.  The  statute 
borrows  "earnest"  from  the  common  law,  and  does  not 
greatly  vary  the  law  in  relation  to  it.  If  one  offers  a  watch 
to  another  for  one  hundred  dollars,  and  the  other  accepts,  and 
forthwith  tenders  the  money,  he  acquires  a  property  in  the 
watch  at  common  law ;  if  he  accepts,  but  does  not  pay 
or  tender  the  price,  the  property  does  not  pass,  and  the  ven- 
dor is  not  bound  by  the  contract,  which  is  presumed  to  have 
contemplated  payment  on  the  spot.  (//)  But  if  the  buyer, 
when  he  accepted  the  offer,  gave  something  by  way  of 
earnest,  and  it  was  accepted  as  such,  this  bound  the  parties 
at  common  law.  Neither  could  rescind  the  sale ;  but  the 
buyer  could  tender  the  price  at  any  time  and  demand  the 
goods,  and  the  seller  could  tender  the  goods,  and  after  the 
time  agreed  on  had  expired,  could  sue  for  the  price.  This 
remains  so  under  the  statute,  which  does  not  seem  to  add 
anything  to  the  force  or  effect  of  the  earnest. 

The  small  value  of  the  thing  given  as  earnest,  is  no  objec- 
tion to  it,  but  it  would  seem  that  it  must  have  some  value. 
A  dime  or  a  cent  might  suffice,  but  not  a  straw  or  a  chip. 
And  it  must  be  actually  given  and  received  ;  merely  touch- 
ing or  crossing  the  hand  with  it  is  not  enough ;  (z)  and  it 
must  be  given  and  received  as  earnest. 

Part  payment  has  the  same  effect  as  earnest.  But  it  must 
be  an  actual  payment ;  and  not  a  mere  agreement  that  some- 
thing shall  be  considered  as  a  payment.  Thus,  if  the  seller 
owes  the  buyer,  and  part  of  the  contract  of  sale  is  that  the 
debt  shall  be  discharged  and  go  as  part  payment  of  the  price, 
nevertheless  the  contract  must  be  in  writing,  because  this  is 
not  an  actual  part  payment,  (a) 

A  question  of  considerable  difficulty  has  been  raised,  as  to 
whether,  and  how  far,  this  section  of  the  statute  of  frauds 
applies  to  executory  contracts.     If  one  agrees  to  buy  at  a 

(x)  Sec  preceding  note.  (~)  Blenkinsop  v.  Clayton,  7  Taunt. 597. 

(y)  See  ante,  vol.  1,  pp.  435,  436.  (a)  Walker  v.  Nussey,  16  M.&  W.302, 


en.   IV.]  STATUTE   OP   FRAUDS.  333 

future  time,  there  are  three  forms  which  the  contract  may 
assume.  One  is  to  buy  hereafter  what  is  now  existing;  a 
second,  to  buy  hereafter  what  is  not  now  existing,  but  is  to 
be  supplied  hereafter,  for  the  sum  agreed  on,  which  is  to  be 
regarded  only  as  the  price  of  the  article  ;  the  third  is,  to  buy 
hereafter  an  article  to  be  manufactured  by  the  seller,  and  the 
bargain  implies  that  the  money  to  be  paid  is  for  the  manu- 
facturing, as  well  as  for  the  article. 

In  the  earlier  English  decisions,  it  seems  to  have  been  held, 
for  some  time,  as  a  settled  rule  of  law,  that  no  executory  con- 
tract of  sale  was  within  this  section  of  the  statute,  (b)  But 
this  doctrine  was  overthrown  by  Lord  Loughborough,  who, 
however,  admitted  that  where  an  executory  contract  of  pur- 
chase and  sale  provided  for  work  and  labor  upon  the  article 
previous  to  its  delivery,  and  important  materials  to  be  fur- 
nished, the  agreement  was  not  within  the  statute,  (c)  The 
ruling  of  Lord  Loughborough  is,  however,  open  to  the  objec- 
tion that  it  conflicts  with  what  seems  to  be  a  perfectly  well- 
established  principle  ;  that  if  an  entire  contract  be  in  part 
within  the  statute  and  in  part  without,  it  must  altogether 
comply  with  the  terms  of  the  statute,  or  no  action  can  be 
brought  upon  it.     And  yet   he  holds  that  an  agreement  for 

(6)  Sec  Towers  v.  Osborne,  1  Strange,  statute  was  designed  to  prevent.     The 

506  ;  Clayton  v.  Andrews,  4  Burr.  2101  ;  case  of  Simon  v.  Metivier,  3  Burr.  1921, 

Alexander  i\  Comber,  1  II.  Bl.  20.  was    decided   on    the   ground   that   the 

(c)  Rondeau  v.  Wyatt,  2  H.  Bl.  63.  auctioneer  was  the  agent  as  well  for  the 

In  this  case  the  plaintiff  and  defendant  defendant  as  the  plaintiff,  and  therefore 

entered  into  a  verbal  agreement  for  the  tliut  the  contract  was  sufficiently  reduced 

sale  of  3,000  sacks  of  flour,  to  be  deliv-  into  writing.     The  case  of  Towers  v. 

crcd  to  the  plaintiff  at  a  future  period  ;  Sir  John    Osborne,    1    Stra.    506,  was 

and  this  agreement  was  held  to  be  with-  plainly  out  of  the  statute,  not  because 

in  tlie  statute.     Lord  Loughborough,  in  it  was  an  executory  contract,  as  it  has 

delivering   the  judgment  of  the  court,  been  said,  but  because  it  was  for  work 

said,  "It  is  singular  that  an  idea  could  and  labor  to  be  done,  and  materials  and 

ever  prevail,   that   this   section  of  the  other  necessary  things  to  be  found,  which 

statute   was    only   applicable    to   cases  is  difl^'erent  from  a  mere  contract  of  sale, 

where  the  liargain  was  immediate,  for  to  which  species  of  contract  alone  the 

it  seems  plain,  from  the  words  made  use  statute   is   applicable.      In    Clayton   v. 

of,  that  it  was  meant  to  regulate  execu-  Andrews,  4  Burr.  2101,  which  was  on 

lory,  as  well  as  other  contracts.     The  an  agreement  to  deliver  corn  at  a  future 

words  are,    '  No  contract  for  the  sale  of  period,  there  was  also  some  work  to  be 

any  goods,'  &c.     And,  indeed,  it  seems  performed,  for  it  was  necessary  that  the 

that  this  provision  of  the  statute  would  corn  should  be  threshed  before  the  de- 

not  be  of  much  use,  unless  it  were  to  livery.     Tliis,  perhaps,  may  seem  to  be 

extend  to  executory  contracts  ;  for  it  is  a   very   nice   distinction,   but   still   the 

from   bargains   to   be   completed   at   a  work   to   be    performed    in    threshing, 

future  period,  that  the  uncertainty  and  made,  though  in  a  small  degree,  a  part 

confusion  will  probably  arise,  which  the  of  the  contract." 


334  THE   LAW   OF   CONTRACTS.  [PART   II. 

the  purchase  of  corn  to  be  delivered  hereafter,  is  not  within 
the  statute,  if  any  threshing  is  to  be  done  upon  it  in  the  mean 
time,  because  the  price  of  the  corn  will  pay  for  this  threshing. 
There  have  been,  since  that  time,  many  cases  turning  upon 
this  question,  and  it  is  impossible  to  reconcile  them  all  with 
any  acknowledged  principle  of  statutory  construction.  It 
must,  indeed,  be  impossible  to  frame  any  rules  which  shall  be 
always  applicable  without  difficulty  to  this  question  ;  but, 
this  difficulty  may  arise,  as  is  remarked  by  the  Supreme 
Court  of  Massachusetts,  (d)  "  not  so  much  from  any  un- 
certainty in  the  rule,  as  from  the  infinitely  various  shades 
of  different  contracts."  From  general  principles,  however, 
illustrated  by  recent  decisions,  we  should  draw  the  fofiowing 
rules.  A  pure  executory  contract  for  the  sale  of  goods, 
wares,  or  merchandises,  is  as  much  within  the  statute,  as  a 
contract  of  present  sale,  (e)  A  contract  for  an  article  not  now 
the  seller's,  or  not  existing,  and  which  must  therefore  be 
bought  or  manufactured  before  it  can  be  delivered,  will  also 
be  within  the  statute,  if  it  may  be  procured  by  the  seller  by 
purchase  from  any  one,  or  manufactured  by  himself  at  his 
choice,  the  bargain  being  in  substance  as  well  as  form,  only, 
that  the  seller  shall,  on  a  certain  day,  deliver  certain  articles 
to  the  buyer  for  a  certain  price.  But  if  the  contract  states 
or  implies  that  the  thing  is  to  be  made  by  the  seller, 
and  also  blends  together  the  price  of  the  thing  and  com- 
pensation for  work,  labor,  skill,  and  material,  so  that  they 
cannot  be  discriminated,  it  is  not  a  contract  of  purchase 
and  sale,  but  a  contract  of  hiring  and  service,  or  a  bargain 
by  which  one  party  undertakes  to  labor  in  a  certain  way  for 
the  other  party,  who  is  thereiipon  to  pay  him  certain  com- 
pensation ;  and  this  contract  is,  therefore,  not  within  the 
statute,  (/)     And  these  rules  will  be  found  to  reconcile  most 

{(!)  In  Gardner  v.  Joy,  9  Met.  177.  (/)  This  distinction  is  well  explained 

(e)  Cooper   v.  Elstoii,    7    T.  E.   14;  and  illustrated  in  llii^ht  v.  Kipley,  19 

Bennett  v.  Hull,  10  Johns.  364;  Jack-  Maine,  137.    In  that  case  the  defendant 

son  I'.  Covert,  5  Wend.  139 ;  Downs  v.  agreed  with  the  plaintiff  "to  furnish,  as 

Ross,  23  Wend.  270;  Garbutt  v.  Wat-  soon  as  practicable,"  1,000 or  1,200  lbs. 

son,  5  B.  &  Aid.  613;  Smith  r.  Surman,  of  malleable  hoe  shanks,  agreeable  to 

9  B.  &  Cr.  ."jei ;   Cason  v.  Cheely,  6  patterns  left  with  him ;  and  to  furnish  a 

Geo.  554 ;  Hondeau  v.  "Wyatt,  2  II.  131.  larger  amount  if  re(iuired  at  a   dimin- 

63.  ibhed  price.     And  the  court  held  that 


CII.  IV.] 


STATUTE    OF   FRAUDS. 


of  the  recent  authoritative  decisions  on  this  subject.     We 
think  also  that  this  will  be  found  to  be  the  true  meaning  and 


this  must  he  considered  as  a  contract  for 
tlic  manufacture  of  the  articles  referred 
to,  and  so  not  within  the  statute  of  frauds. 
Shcpky,  J.,  said,  "It  may  he  considered 
as  now  settled,  that  the  statute  of  frauds 
enihraccs  executory  as  well  as  executed 
contracts  for  the  sale  of  goods.  But  it 
does  not  ]nxvcnt  parties  from  contracting 
verhally  for  the  manufacture  and  deli- 
very of  articles.  The  only  difficulty  now 
remaining  is,  to  decide  whether  the  con- 
tract be  one  for  the  sale,  or  for  the  manu- 
facture and  delivery  of  tlie  article.  It 
may  provide  for  the  application  of  labor 
to  materials  already  existing  partially  or 
wholly  in  the  form  designed,  and  that 
the  article  improved  by  the  labor  shall 
be  transferred  from  one  i)arty  to  the 
other.  la  such  cases  there  may  be  dif- 
ficulty in  ascertaining  the  intentions  ; 
and  the  distinction  may  be  nice,  whether 
it  be  a  contract  for  sale  or  for  manu- 
facture. The  decision  in  the  case  of 
Towers  v.  Osborne,  2  Strange,  506,  is 
esteemed  to  have  been  correct,  while  the 
reasons  for  it  are  rejected  as  erroneous. 
The  chariot  bespoken  docs  not  appear 
to  have  existed  at  the  time,  but  to  have 
been  manufactured  to  order.  In  Garbutt 
D.Watson,  5  B.  &  Aid.  613,  the  contract 
was  "for  the  sale  of  100  sacks  of  flour, 
at  50s.  per  sack,  to  be  got  ready  by  the 
plaintitf  to  ship  to  the  defendant's  order, 
free  on  board,  at  Hull,  within  three 
weeks. "  There  was  an  attempt  to  ex- 
clude it  from  the  statute,  because  the 
plaintiffs  were  millers,  and  had  not 
the  flour  then  ground  and  prepared  for 
delivery.  But  the  contract  did  not  pro- 
vide that  they  should  manufacture  the 
flour;  they  might  have  purchased  it 
from  others,  and  have  fuliilled  all  its 
terms.  It  was  decided  to  be  a  contract 
for  the  sale  of  the  flour,  and  within  the 
statute.  If  the  contract  be  one  of  sale, 
it  cannot  be  material  whether  the  article 
be  then  in  the  possession  of  the  seller, 
or  whether  he  afterward  procure  or  make 
it.  A  contract  for  the  manufacture  of 
an  article,  diff'ers  from  a  contract  of  sale, 
in  this  :  tlie  person  ordering  the  article 
to  be  made  is  under  no  obligation  to  re- 
ceive as  good  or  even  a  better  one  of  the 
like  kind  purchased  from  another  and 
not  made  for  him.  It  is  the  peculiar 
skill  and  labor  of  the  other  party,  com- 
bined with  the  materials,  for  which  he 


contracted,  and  to  which  he  is  entitled. 
Hence  it  has  been  said,  that  if  the  article 
exist  at  the  time  in  the  condition  in 
which  it  is  to  be  delivered,  it  should  be 
regarded  as  a  contract  for  sale.  In  Crook- 
shank  V.  Burrell,  18  John.  58,  the  con- 
tract was,  that  the  defendant  should 
make  the  wood  work  of  a  wagon  for  the 
plaintirt'  by  a  certain  time ;  and  it  was 
decided  not  to  be  a  contract  for  sale.  In 
the  case  of  Mixer  v.  Howartli,  21  Pick. 
205,  the  contract  was,  that  the  plaintiff 
should  finish  for  the  defendant  a  buggy, 
then  partly  made ;  and  it  was  decided 
not  to  be  a  contract  for  sale.  The  eon- 
tract  in  this  case  provides,  that  the  de- 
fendants should  ''  furnish,  as  soon  as 
practicable,  1,000  or  1,200  lbs.  of  malle- 
able hoe  siianks,  agreeable  to  patterns 
left  with  them.  "  They  were  to  be  "  de- 
livered at  their  furnace."  There  is  a  pro- 
vision, that  the  defendants  may  immedi- 
ately receive  orders  for  a  larger  amount, 
say  2,000  lbs.  more  than  heretofore  sta- 
ted," and  that  '  the  whole  amount  is  (in 
such  casej  to  be  charged  at  a  dimin- 
ished price.'  Taking  into  consideration 
all  the  provisions  of  the  contract,  there 
can  be  little  doubt  that  it  was  the  inten- 
tion of  the  parties,  that  the  defendants 
should  manufacture  the  shanks  at  their 
furnace,  agreeably  to  certain  patterns 
which  had  been  left  with  them.  There 
is  no  evidence  in  the  case  tending  to 
prove,  that  the  articles  were  then  exist- 
ing in  the  form  of  the  pattern.  It  may 
be  fairly  inferred  that  they  were  not, 
but  were  to  be  made  as  soon  as  practi- 
cable. The  testimony  presented  does 
not  then  prove  a  contract  for  the  sale  of 
goods,  but  rather  one  for  the  manufacture 
of  certain  articles  of  a  jjrescribed  pat- 
tern, by  order  of  the  plaintifl'. "  Again, 
in  Gardner  v.  Joy,  9  Met.  177,  it  ap- 
peared that  A.  asked  B.  what  he  would 
take  for  candles ;  B.  said  he  would  take 
twenty-one  cents  per  pound  ;  A.  said  he 
would  take  one  hundred  boxes ;  B.  said 
the  candles  were  not  manufactured,  but 
he  would  manufacture  and  deliver  them 
in  the  course  of  the  summer.  ILkl,  that 
this  was  a  contract  for  the  sale  of  goods, 
within  the  statute  of  frauds.  i\.\\t\Shaw, 
C.  J.,  said,  "  It  was  essentially  a  con- 
tract of  sale.  The  incpiiry  was  for  the 
price  of  candles  ;  the  (juantity,  j)rice, 
and  terras  of  sale  were  fixed,  and  the 


336 


THE   LAW   OF   CONTRACTS. 


[part  II. 


eflect  of  the  statute  of  9th  Geo.  4.,  c.  14,  in  extension  of  the 
statute  of  frauds,  (g-) 

It  is  to  be  noticed,  that  while  some  of  the  sections  of  this 


mode  in  whick  they  should  be  put  up. 
The  only  reference  to  the  fact  that  they 
wcie  not  then  made  and  ready  for  deli- 
very, was  in  regard  to  the  time  at  which 
they  would  be  ready  for  delivery ;  and 
the  fact  that  they  were  to  be  manufac- 
tured, was  stated  as  a  indication  of  the 
time  of  delivery,  wliich  was  otherwise 
left  uncertain."  And  see  Mixer  i;.  IIow- 
arth,  21  rick.  205:  Spencer  v.  Cone,  1 
Met.  283  ;  Lamb  r.' Crafts,  12  Met.  S.'iS; 
Waterman  v.  Meigs,  4  Cush.  497  ;  Watts 
V.  Friend,  10  B.  &  Cr.  446;  Cason  r. 
Cliecly,  G  Geo.  .'554  ;  Bird  v.  Muhlen- 
brink,"l  llich.  19!);  Ilardell  v.  McClure, 
1  Chand.  271.  Until  quite  recently,  how- 
ever, both  in  this  country  and  in  Eng- 
land, it  was  held  that  all  contracts  for 
the  sale  of  articles  not  then  existing  in 
the  state  in  which  they  were  to  be  deliv- 
ered, were  out  of  the  statute.  See  Ron- 
deau V.  Wvatt,  2  11.  Bl.  63,  cited  supra  ; 
Groves  v.  Buck,  3  M.  &  S.  178 ;  Crook- 
shank  V.  Burrell,  18  Johns.  58;  Sewall  v. 
Fitch,  8  Cow.  215.  And  sudi  the  Su- 
perior Court  of  the  City  of  New- York 
has  recently  declared  to  be  still  the  law 
of  New-York.  Ilobertson  v.  Vaughn,  5 
Sandf.  1.  In  that  case  the  defendant 
made  a  contract  with  the  plaintiff  to 
make  and  deliver  to  him,  at  a  specified 
time,  one  thousand  molasses  shocks  and 
heads.  And  this  was  held  to  be  a  con- 
tract for  work  and  labor,  and  so  not 
within  the  statute.  Dner,  J.,  said,  "  We 
certainly  tliink  tliat  tliis  case  is  within 
the  mischief  that  the  statute  of  frauds 
was  designed  to  prevent,  and  that  the 
contract  between  the  parties  was  sub- 
stantially a  contract  for  the  sale  of  goods 
and  merchandise,  and  not  for  work  and 
labor.  But  we  cannot  shut  our  eyes  to 
the  fact,  that  the  case  of  Sewall  v.  Fitch, 
8  Cow.  215,  as  the  counsel  for  the  de- 
fendant found  himself  under  tlie  neces- 
sity of  admitting,  is  not  distinguishable 
from  the  present;  and  that  no  conflicting 
decisions  are  to  be  found  in  our  own 
reports.  The  contract,  which  the  Sup- 
reme Court  in  tliat  case  held  not  to  be 
witliin  tlie  statute,  bore  an  entire  anal- 
ogy to  that  between  the  parties  now 
before  us,  with  the  single  exception 
that  it  related  to  nails  instead  of  shooks. 
It  is  true,  that  it  would  not  be  easy  to 


reconcile  Sewall  v.  Fitch  with  the  cases 
in  England  and  in  Massachussetts,  to 
which  we  were  referred ;  but  for  more 
than  twenty  years,  it  has  been  consid- 
ered as  evidence  of  the  law  in  this  State, 
and  as  such,  has  doubtless  been  followed 
in  numerous  instances  by  infiirior  tri- 
bunals. Under  these  circumstances  we 
think  that  it  belongs  only  to  the  court 
of  ultimate  jurisdiction  to  set  aside  the 
authority  of  the  decision,  and  correct 
the  error  which  it  probably  involves.  If 
all  contracts  between  merchants  and 
manufacturers  for  the  purchase  of  goods, 
to  he  thereafter  maniijactured,  are  to  be 
excepted  from  the  statute  of  frauds, 
there  seems  to  be  little  reason  for 
retaining  at  all  those  provisions  of  the 
statute  which  relate  to  the  sale  of  goods 
to  be  delivered  on  a  future  day,  since  it 
is  hardly  possible  to  imagine  an  excep- 
tion more  arbitrary  in  its  nature,  and 
more  contrary  to  the  policy  upon  which 
the  statute  is  admitted  to  be  founded. 
Such  an  exception,  embracing,  as  it  does, 
a  very  large  class  of  cases,  frequently 
of  great  amount  in  value,  is,  in  its 
principle,  equivalent  to  a  repeal ;  and 
either  the  law  itself  should  be  abolished, 
as  imjjosiug  a  needless  restraint  upon 
the  transaction  of  business,  or,  if  the 
sound  policy  of  the  law  must  be  admit- 
ted, an  exception  repugnant  to  its 
spirit  and  destructive  of  its  utility, 
should  no  longer  be  permitted  to  exist. 
A  new  statute,  similar  to  9  Geo.  4, 
c.  14,  seems  to  be  recjuired,  and  should 
the  attention  of  the  legislature  be  direct- 
ed to  the  subject,  would  jjrobably  be 
passed  ;  but  we  are  not  legislators,  and 
as  judges,  must  administer  the  law  as 
we  find  it  established.  "  And  see  Bron- 
son  V.  Wiman,  10  Barb.  406. 

{(/)  By  that  statute  it  is  enacted  that 
"  the  provisions  of  the  statute  of  frauds 
shall  extend  to  all  contracts  for  the  sale 
of  goods  to  the  value  of  10/.  or  up- 
wards, notwithstanding  the  goods  may 
be  intended  to  be  delivered  at  some 
future  time,  or  may  not  at  tlic  time  of 
such  contract  Ijc  actually  made,  pro- 
cured or  provided,  or  fit  or  ready  for 
delivery,  or  some  act  may  be  requisite 
for  the  making  or  completing  thereof, 
or  rendering  the  same  lit  for  delivery." 


en.  IV.] 


STATUTE    OF   FRAUDS. 


337 


statute  declare  the  oral  contracts  which  they  are  intended 
to  prevent,  utterly  void,  the  fourth  section  only  provides 
that  no  action  shall  be  brought  upon  the  promises,  or  for 
the  purposes  therein  enumerated,  and  the  seventeenth,  that 
no  contract  specified  therein  shall  "  be  allowed  to  be  good," 
unless  there  be  earnest,  part  payment,  part  delivery  and 
acceptance,  or  a  writing  signed.  The  distinction  is  some- 
times important;  nor  is  it  adequately  expressed  in  the  cases 
which  say  that  these  oral  contracts,  embraced  within  the 
fourth  section,  are  not  void,  but  voidable,  by  the  statute  of 
frauds?  We  consider  them  neither  void  nor  voidable.  If 
they  were  good  at  common  law,  they  remain  good  now,  for 
all  purposes  but  that  expressly  negatived  by  the  statute  ;  that 
is,  no  action  can  be  brought  upon  them,  but  in  other  respects 
they  are  valid  contracts.  (A)     The  nature  or   effect  of   the 


{h)  Shaw  V.  Shaw,  6  Verm.  69  ;  Phil- 
brook  V.  Belknap,  id.  383 ;  Minns  v. 
Morse,  13  Ohio,  568;  Whitney  v.  Coch- 
ran, 1  Scam.  209  ;  Dowdlc  v.  Camp,  12 
Johns.  451 ;  Sims  v.  Hutchins,  8  Sm.  & 
M.  328;  Souch  v.  Strawbridge,  2  C.  B. 
808;  Crane  v.  Gough.  4  Marj'land,  316. 
This  point  is  well  illustrated  by  the 
recent  case  of  Leroux  v.  Brown,  14  E. 
L.  &E.  247.  That  was  an  action  to 
recover  damages  for  the  breach  of  a  parol 
contract  entered  into  at  Calais,  in  France, 
by  whicli  the  defendant,  who  resided  in 
England,  agreed  with  the  plaintiti',  a 
British  subject  residing  at  Calais,  to  em- 
ploy the  plaintift'as  the  defendant's  agent, 
to  collect  eggs  and  poultry  at  Calais, 
and  to  send  them  over  to  the  defendant 
in  England,  the  service  to  be  for  one 
year  from  a  future  day,  at  100/.  a  year. 
The  plaintiff  proved  that  by  the  law  of 
France,  this  contract,  though  not  in  writ- 
ing, was  valid,  and  could  be  enforced  by 
the  courts  in  that  country.  Tiie  defendant 
set  up  the  4th  section  of  the  statute  of 
frauds  as  a  defence.  And  the  question 
was  whether  that  section  applied  to  the 
validity  of  the  contracts  embraced  with- 
in it,  or  only  to  the  mode  of  procedure 
upon  them.'  The  court  held  that  the 
latter  was  the  true  construction  of  the 
statute,  and  therefore,  that  the  action 
could  not  be  maintained.  Jervis,  C.  J., 
said,  "  There  has  been  no  discussion  at 
the  bar  as  to  the  jirinciples  which  ought 
to  govern  our  decision.  It  is  admitted  by 
the  plaintiff  s  counsel,  that   if  the   4th 

VOL.  II.  29 


section  of  the  statute  of  frauds  applies, 
not  to  the  validity  of  the  contra(rt,  but 
only  to  the  mode  of  procedure  upon  it, 
then  that,  as  there  is  no  '  agreement, 
or  memorandum,  or  note  thereof, '  in 
writing,  this  action  is  not  maintainable. 
On  the  other  hand,  it  is  not  denied  that, 
if  that  section  applies  to  the  contract 
itself,  or,  as  Bullenois  says,  to  the  '  so- 
lemnities" of  the  contract,  inasmuch 
as  our  law  docs  not  affect  to  regulate 
foreign  contracts,  the  action  is  main- 
tainable. On  consideration,  I  am  of 
opinion  that  the  4th  section  does  not 
apj)ly  to  the  'solemnities'  of  the  con- 
tract, but  to  the  ])roceedings  upon  it ;  and 
therefore  that  this  action  cannot-lie  main- 
tained. The  4th  section,  looking  at  it 
in  contrast  with  the  1st,  2d,  3d,  and  17th, 
leads  to  this  conclusion.  The  words 
are,  '  No  action  shall  be  brought  where- 
by to  charge  any  person  ujjon  any 
agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the 
making  thereof,  unless  the  agreement 
upon  which  such  action  shall  be  brought, 
or  some  mcTnorandum  or  note  thereof 
shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some 
other  person  thereto  by  him  lawfully 
authorized.'  It  does  not  say.  tliat,  unless 
those  requisites  are  complied  with,  the 
contract  shall  be  void,  but  only  that  'no 
action  shall  be  brougiit  upon  it;'  and, 
as  put  by  Mr.  Honyman,  with  great  force, 
the  alternative,  rc(iuiring  the  'agree- 
ment or  some  memorandum  thereof  to 


338 


THE    LAW   OF   CONTRACTS. 


[part  II. 


contract  is  not  changed ;  but  the  statute  points  out  certain 
modes  of  confirming  or  verifying  the  contract,  which  are 
essential  to  the  maintenance  of  an  action  upon  it.  Hence, 
on  the  one  hand,  it  supplies  no  want,  as  of  consideration,  or, 
in  other  words,  makes  no  contract  good  which  would  not  be 
good  without  it.  And,  on  the  other  hand,  the  contract  is 
valid  as  to  third  parties,  although  the  statute  has  not  been 
complied  with  ;  (i)  and,  if  the  contract  has  been  fully  exe- 
cuted, the  statute  has  no  power  over  it  whatever,  and  no 
effect  upon  the  rights,  duties,  and  obligations  of  the  par- 
ties.  U) 


be  in  writing,  shows  that  the  legislature 
contemphitcd  a  contract,  good  before 
any  writing,  but  not  enforceable  witliout 
the  writing  as  evidence  of  it.  This 
view,  which  tlie  words  of  the  statute 
present,  is  also,  I  think,  in  conformity 
witli  the  authorities.  Tlie  cases  cited 
by  the  very  learned  author  of  the  Law 
of  Vendors  and  Puicliasers,  and  the  prac- 
tise of  the  courts  of  equity,  show  that 
if  any  writing  be  subsequently  made  and 
signed  by  the  party  to  be  cliargcd  with 
the  agreement,  there  is  a  sufficient  com- 
pliance with  the  4th  section  to  enable  the 
other  party  to  enforce  the  agreement. 
Authority  and  jiractice,  therefore,  are 
both  in  conformity  with  tiie  words  of 
the  statute.  But  it  is  said  that  tlie  cases 
of  Carrington  v.  Roots,  2  M.  &  W.  248, 
and  Ileade  v.  Lamb,  6  Exch.  130,  are 
inconsistent  with  this  view.  It  is  suf- 
ficient to  say  that  the  attention  of  the 
learned  judges  who  decided  those  cases, 
was  not  directed  to  the  particular  point 
raised  by  tlic  present  case.  AVhat  the 
court  said  in  those  cases  was,  that  for 
the  purposes  of  the  action  in  those  par- 
ticular instances,  there  was  no  dift'ercnce 
between  the  effect  of  the  4th  and  the  17th 
sections.  It  must  not  be  forgotten  that 
the  meaning  of  those  sections  has  been 
explained  in  otlicr  cases.  In  Crosby  v. 
Wadsworth,  G  East,  G02,  Lord  Ellen- 
horow/h  says,  '  The  statute, '  that  is,  the 
4tli  section,  'does  not  expressly  and  im- 
mediately vacate  such  contracts,  if  made 
by  parol;  it  only  precludes  the  bringing 
of  actions  to  enforce  them.'  The  same 
view  is  adopted  by  Tindall,  C.  J.,  and 
Bosamjuet,  J.,  in  Laythoarp  v.  Bryant,  2 
Bing.  N.  C.  73,'),  from  which  it  appears 
that  the  contract  is  good  antecedent  to 
any  writing,  and  that  the  effect  of  the 


4th  section  is,  not  to  avoid  it,  but  to  bar 
the  remedy  upon  it,  unless  there  be 
writing.  I  therefore  think  that  an  action 
on  the  contract  in  this  case  will  not  lie 
in  this  country,  because  the  4th  section 
relates  merely  to  the  mode  of  procedure, 
and  not  to  the  validity  of  the  contract. 
This  view  is  not  inconsistent  with  what 
has  been  cited  from  BouUenois,  who  is 
speaking  of  what  pertains  '  ad  vinculum 
obligationis  et  solemnitatem, '  and  not 
of  what  relates  to  the  mode  of  pro- 
cedure." Talfoiird,  J.  "I  think  Mr. 
Honyman's  argument,  drawn  from  Lay- 
thoarp V.  Bryant,  and  those  cases  which 
decide  that  the  writing  required  by  the 
statute,  may  be  a  letter  from  the  party  to 
be  charged,  to  a  third  person,  containing 
the  terms  of  the  agreement,  conclusively 
shows  thatthe4th  section  does  not  render 
the  contract  absolutely  void,  but  only  ap- 
plies to  the  mode  of  procedure  upon  it." 

(/)  Cahill  V.  Bigclow,  18  Pick.  369; 
Bohannon  v.  Pace,  C  Dana,  194. 

(/)  Stone  V.  Dennison,  13  I'ick.  1.  In 
this  case  the  plaintiff"  and  defendant  had 
entered  into  a  contract  by  virtue  of 
which  the  plaintiff"  was  to  enter  into  the 
defendant's  service  and  continue  for 
several  years,  at  a  stipulated  rate  of 
compensation.  The  plaintiff"entercdinto 
the  defendant's  service  accordingly,  and 
continued  for  tlie  stipulated  time,  and 
the  defendant  paid  him  the  stipulated 
comjiensation.  Subsequently  this  action 
was  brought  to  recover  an  additional 
comjiensation,  upon  a  fjuanhnu  meruit. 
The  defendant  interposed  the  executed 
contract  as  a  defence,  and  was  sustained 
by  the  court.  iSliair,  C.  J.,  said,  "  The 
contract  has  been  completely  performed 
on  both  sides.  Tlic  defendant  is  not 
seeking  to  enforce  this  agreement  as  an 


en.  IV.] 


STATUTE   OF  FRAUDS. 


339 


Of  the  other  seetions  of  this  statute  it  will  not  be  neces- 
sary to  say  much.  Those  which  relate  to  wills,  lie  entirely 
without  the  scope  of  this  work  ;  and  those  in  relation  to 
trusts,  almost  as  much  so.  The  first,  second,  and  third  sec- 
tions relate  to  leases,  and  these  sections  are  subject  to  so  many 
important  modificati(.>ns  in  this  country,  the  provisions  re- 
specting them  in  the  several  States,  being  not  only  diverse 
from  the  statute,  but  from  each  other,  that  an  examination 
of  the  questions  which  have  arisen  under  the  English  statute, 
and  of  the  adjudication  which  has  settled  these  questions, 
would  not  be  of  much  use. 

It  should  be  said,  however,  that  equity  has  held  that  a 
part-performance  of  a  contract  takes  the  case  out  of  the 
statute ;  either  on  the  ground  of  fraud,  (k)  or  on  the  presump- 
tion of  an  unproved  agreement  which  satisfies  the  require- 


exccutory  contract,  but  simply  to  sliow 
that  tlie  plaintiff  is  not  entitled  to  recover 
upon  a  gaaidum  mcntit,a.s  upon  an  implied 
promise.  But  the  statute  docs  not  make 
such  a  contract  void.  The  provision  is, 
that  no  action  shall  be-brought,  whereby 
to  charjie  any  person  upon  any  aj^ree- 
ment,  which  is  not  to  be  performed  within 
the  space  of  one  year,  unless  the  agree- 
ment shall  be  in  writing.  The  statute 
prescribes  the  species  of  evidence  ne- 
cessary to  enforce  the  execution  of  such 
a  contract.  But  where  the  contract  has 
been  in  fact  performed,  the  rights,  duties, 
and  obligations  of  the  parties  resulting 
from  such  performance,  stand  unaffected 
by  the  statute.  In  the  case  of  Boydell 
V.  Drunimond,  11  East,  142,  a  case  was 
put  in  the  argument,  of  goods  sold  and 
delivered  at  a  certain  price,  by  ]iarol, 
upon  a  credit  of  thirteen  months.  There, 
as  a  part  of  the  contract  was  the  pay- 
ment of  the  price,  which  was  not  to  be 
performed  within  the  year,  a  question  is 
made,  whether,  by  force  of  the  statute, 
the  purchaser  is  exempted  from  the 
obligation  of  the  agreement,  as  to  the 
stipulated  price,  so  as  to  leave  it  open 
to  the  jury  to  give  the  value  of  the  goods 
only,  as  upon  an  implied  contract.  "In 
that  ease,"  said  hord  Ellenhorou;/h,  "the 
delivery  of  the  goods,  which  is  supposed 
to  be  made  within  the  year,  would  be  a 
complete  execution  of  the  contract,  on 
the  one  part ;  and  the  question  of  consid- 
eration only  would  be  reserved  to  a  future 
period."  If  a  performance  upon  one  side 


would  avoid  the  operation  of  the  statute, 
a  fortiori  would  the  entire  and  complete 
performance  on  both  sides  have  that 
effect.  Take  the  common  case  of  a 
laborer,  entering  into  a  contract  with 
his  employer,  towards  the  close  of  a  year, 
for  another  year's  service,  upon  certain 
stipulated  terms.  Should  either  party 
refuse  to  perform,  the  statute  would 
prevent  either  party  from  bringing  any 
action,  whereby  to  charge  the  other 
upon  such  contract.  But  it  would  be  a 
very  different  question,  were  the  con- 
tract fulfilled  upon  both  sides,  by  the 
performance  of  the  services  on  the  one 
part,  and  the  payment  of  money  on 
account,  from  time  to  time,  on  the  other, 
equal  to  the  amount  of  the  stipulated 
wages.  In  case  of  the  rise  of  wages 
within  the  year,  and  the  consequent  in- 
creased value  of  the  services,  could 
the  laborer  bring  a  quantum  meruit  and 
recover  more,  or  in  case  of  the  fall  of 
labor  and  the  diminished  value  of  the  ser- 
vices, could  the  employer  liring  money 
had  and  received,  and  recover  back  part 
of  the  money  advanced,  on  the  ground, 
that  by  the  statute  of  frauds  the  original 
contract  could  not  have  been  enforced  1 
Such,  we  think,  is  not  the  true  construc- 
tion of  the  statute.  We  are  of  opinion, 
that  it  has  no  application  to  executed 
contracts,  and  that  the  evidence  of  this 
contract  was  rightly  admitted.  "  And 
see  ante,  p.  319. 

(k)  See  Eoberts  on  Frauds,  p.  130, 
et  seq. 


340  THE  LAW  OF  CONTRACTS.  [PART  II. 

ments  of  the  statute.  (/)  INIuch  doubt  has  been  expressed  as 
to  the  wisdom  or  expediency  of  this  rule;  (m)  but  it  seems 
now  to  be  well  established.  But  the  efforts  to  make  the  same 
rule  operative  at  law,  (//)  have  wholly  failed ;  and  the  dicta 
which  assert  this  rule  at  law,  have  been  overruled,  (o)  And 
even  in  equity,  it  is  established  with  some  qualifications,  or, 
rather,  requirements.  Thus,  nothing  is  a  part  performance 
for  this  purpose,  which  is  only  ancillary  or  preparatory ;  (/;) 
it  must  be  a  direct  act  which  is  intended  to  be  a  substantial 
part  of  the  performance  of  an  obligation  created  by  the  con- 
tract; (</)  and  it  must  be  an  act  which  would  not  have  been 
done  but  for  the  contract ;  (r)  and  it  must  be  directly  in  pre- 
judice of  the  party  doing  the  act,  who  must  himself  be  the 
party  calling,  on  this  ground,  for  the  completion  of  the  con- 
tract, (s) 

{I)  See  Roberts  on  Frauds,  p.  130,     ton,  15  Maine,  14;  Jackson  v.  Pierce,  2 
et  seq.  Johns.  224. 

(m)  See  Lindsay  v.  Lynch,  2  Sch.  &        \l'\  f''  1^°^^,^^^  «"  ^''""J-.P-J^.^;, 

Lcf.    1;   Forstcr   v.   Hale,  3  Ves.  6'JC,  ^    '/)  Jones  r  Petennan  3  b  .V  R.  543 ; 

_,q       '  Jolniston  !'.  Ghmcy,  4  Bhickf.  It4;  ]Mor- 

phctt  V.  Jones,  1  Swanst.  172;  Hooper, 

()i)  Erodie  v.  St.  Paul,  1  Ves.  Jr.  326  ;  g^  parte,  19  Ves.  477. 
Davenport  v.  Mason,  15  Mass.  85.  '  (,.)  Pi-ame  ?'.  Dawson,  14  Ves.  386  ; 

(o)  Cooth  V.  Jackson,  G  Ves.  39  ;  Kid-  Guntcr  v.  Ilalsey,  Ambl.  586  ;  Phillips 

der  V.  Hunt,   1    Pick.  331  ;  Adams  v.  v.  Thompson,  1  "joiiiis.  Ch.  149. 
Townsend,  1  Met.  483;  Norton  v.  Pres-        (s)  See  Roberts  on  Frauds,  p.  138. 


CII.  v.]  STATUTE    OF   LIIMITATIONS.  341 


CHAPTER  V. 

THE   STATUTE   OF   LIMITATIONS. 

Sect.  1. —  The  General  Purpose  of  the  S{,aluie. 

Any  tribunal  which  inquires  into  the  validity  of  a  claim, 
must  admit  that  its  age  is  among  the  elements  wiiich  deter- 
mine the  probability  of  its  having  a  legal  existence  and  obli- 
gation. The  natural  course  of  events  is  for  him  who  owes 
a  debt,  to  pay  it ;  and  for  him  to  whom  a  debt  is  due,  to 
demand  it;  and  conduct  which  is  opposite  to  this,  is  excep- 
tional. And  human  experience  tells  us,  that  it  is  very  rare, 
in  point  of  fact,  for  a  creditor  to  let  a  claim  which  is  enforce- 
able at  law,  lie  for  a  long  period,  not  only  unpaid,  but  un- 
called for.  This  improbability  the  common  law  recognized  ; 
and  when  the  claim  was  old  enough,  it  considered  the  impro- 
bability too  strong  to  be  overthrown  by  the  mere  fact  of  an 
original  debt,  and  no  evidence  of  payment ;  in  other  words, 
it  raised  a  presumption  of  payment  after  many  years ;  this 
period  is  generally,  now  almost  universally,  twenty  years ; 
and  it  still  applies  to  all  personal  claims  which  are  not  limited 
by  the  statute  of  limitations,  (i)  But  this  was  not  an  abso- 
lute presumption,  because  it  could  be  rebutted  by  acts  or 
words  on  the  part  of  the  debtor,  which  were  incompatible 
with  such  payment.  At  length,  the  statute,  21  James  L,  c. 
16,  enacted,  among  other  things,  that  all  actions  of  account, 
and  upon  the  case,  other  than  such  accounts  as  concern  the 
trade  of  merchandise  between  merchant  and  merchant,  their 
factors  or  servants,  all  actions  of  debt  grounded  upon  any 
lending,  or  contract  without  specialty,  and  all  actions  of  debt 
for  arrearages  of  rent,  should  be  commenced  and  sued  within 
six  years  next  after  the  cause  of  such  actions  or  suit,  and  not 
after. 

(t)  Dufficld  V.   Creed,   5   Esp.   52;    Cooper  v.  Turner,  2  Stark.  497;  Chris- 
topticrs  V.  Sparkc,  2  Jac.  &  Walk.  223. 

29* 


342  THE   LAW   OF   CONTRACTS.  [PART  II. 

It  is  not  quite  certain,  from  the  selection  of  the  claims  to 
which  this  statute  applies,  whether  it  proceeded  upon  the 
same  ground  as  the  legal  presumption  ;  that  is,  actual  pro- 
bability of  payment ;  for  while  these  claims  are  such  as 
would  very  seldom  be  suffered  to  be  long  unsettled,  and 
the  excepted  claims,  as  those  of  accounts  between  mer- 
chants, and  those  grounded  on  specialty,  are  often  permitted 
to  go  on  without  liquidation  for  a  considerable  period,  it  is 
also  true  that  this  latter  class  of  claims  might  become  old 
without  becoming  stale,  and  should  be  excepted  from  a 
statute  of  limitations  which  went  on  the  ground  that  the 
actions  which  it  prohibited  ought  not  to  be  brought  after  a 
certain  time,  w^hether  the  debts  were  paid  or  not,  because 
they  ought  not  to  be  suffered  to  lie  unsettled  so  long.  And 
some  of  the  earlier  decisions  of  the  questions  which  soon 
arose  under  this  statute,  would  lead  to  the  supposition  that 
the  courts  then  regarded  it  as  a  statute  of  repose,  and  not  one 
of  presumption,  (u)  Soon,  however,  the  other  view  pre- 
vailed ;  and  a  long  course  of  decisions  occurred,  which  can 
be  justified  and  explained  only  on  the  supposition  that  the 
statute  is  to  be  construed  as  one  of  presumption,  and  of  re- 
buttable presumption,  (v)  Gradually,  however,  this  view 
gave  way  to  the  other;  and  it  may  now  be  considered  as  the 
established  rule,  that  the  statute  proceeds  upon  the  expe- 
diency of  refusing  to  enforce  a  stale  claim,  whether  paid  or 
not,  and  not  merely  on  the  probability  that  a  stale  claim  has 
been  paid;  and  this  expediency  is  the  actual  basis  of  the  law 


(h)  Bland  v.  Ilaselrig,  2  Vent.  151  ;  mar,  2  Campb.  9;  Leaper  f.  Tatton,  16 
Dickson  v.  Thompson,  2  Show.  125;  East,  420;  Loweth  v.  Fothcrp;!!!,  4 
Lacon  v.  Brings,  3  Atk.  105;  Bass  v.  Campb.  184;  Dowthwaitc  t).  Tihbut,  5 
Smith,  12  Vin.  Abr.  229,  pi.  4  ;  Owen  M.  &  S.  75  ;  Bealc  v.  Nintl,  4  B  &  Aid. 
V.  Wolley,  Bull.  N.  T.  148;  Andrews  508;  Clark  v.  Ilougbam.  2  B.  &  Cr.  149  ; 
V.  Brown",  Free,  in  Cli.  386  ;  Ileyling  v.  Frost  v.  Bcngongh,  1  Bing.  206  ;  Col- 
Hastings,  1  Ld.  Raym.  389,  421;  Spar-  lodge  v.  Horn,  3  Bing.  119;  Triggs  v. 
ling  V.  Smith,  id.  741.  Newnliam,  1   C.  &  P.  631  ;  East  India 

(v)  Yea   V.  Fourakcr,   2   Burr.  1099;  Co.  v.  Prince,  By.  &  M.  407  ;  Sluby  v. 

Quantock   v.   England,  5    Hurr.  2628;  Cliamplin,  4  Johns.  461;  l)e  Forest  v. 

Richardson  i-.  Fen,  Loift,  86;  Lloyd  v.  Hunt,  8  Conn.  179;  Aiken  c.  Benton,  2 

Maund,  2  T.  R.  760  ;  Catling  v.  Skould-  Brevard,  330;  Lee  v.  Perry,  3  McCord, 

ing,  6  id.  189;  Lawrence   v.   Worrall,  552;    (Uenn    ;•.    IMcCuUough,    Harper, 

Pcake,  N.P.  93;  Clarke  r.  Brac'shaw,  3  484;    Burden  r.  iM'Klhenny,  2  Nott  & 

Esp.  1.^5;  Bryan  v.  Horseman,  5  Esp.  McCord,  60;  Sheftall  v.  Clay,   R.   M. 

81,  4  East,  599;  Rucker  v.  Hannay,  4  Charlt.  7. 
East,  004,  n.  (a) ;  Gainsford  v.  Gram- 


ClI.  v.]  STATUTE   OF   LIMITATIONS.  343 

of  limitations.  This  change  we  deem  one  of  extreme  impor- 
tance. The  tendency  to  it  caused  much  of  the  conflict  and 
uncertainty  wliich  attended  the  adjudication  upon  this  sta- 
tute in  England.  The  prevalence  of  the  new  view  gave  rise 
at  length  to  Lord  TenterderC s  act  in  England,  {iv)  which  has 
been  adopted  in  many  of  our  States,  and  found  to  work  very 
beneficially  ;  and  in  the  construction  of  this  statute,  or  in  the 
consideration  of  questions  arising  under  the  earlier  statutes 
of  limitations  where  they  remain  in  force,  we  consider  that 
the  principle  which  wmU  hereafter  be  applied,  will  be  that 
which  regards  the  statute  of  limitations  as  a  statute,  not  of 
presumption,  but  of  repose. 

A  very  little  observation  will  show  that  these  two  views 
lead  to  results  which  are  not  only  distinctly  different,  but 
antagonistic.  This  difference  may  be  stated  thoretically  thus  : 
If  the  statute  of  limitation  be  a  statute  of  presumption,  then 
it  is  taken  away  by  whatever  will  rebut  the  presumption; 
and  this  is  anything  which  implies  or  amounts  to  an  acknow- 
ledgment that  the  debt  still  exists.  But  if  it  be  a  statute  of 
repose,  then  it  remains  in  force,  unless  the  debtor  renounces 
its  benefit  and  protection,  and  voluntarily  makes  a  new  pro- 
mise to  pay  the  old  debt.  It  is  true,  that  immediately  after 
the  enactment  of  the  statute  of  James,  if  the  statute  were 
pleaded,  the  only  replication  was  "  a  new  promise."  But 
when  issue  was  joined  on  this  replication,  the  plaintiff  made 
out  his  case  by  showing  only  a  new  acknowledgment.  And 
it  was  a  gradual  progress  in  the  courts,  which  finally  led 
them  to  require  that  this  acknowledgment  should  be  such, 
in  fact,  as  amounted  to  a  promise.  Thus,  Lord  Mansfield 
said,  (x)  "  The  slightest  acknowledgment  has  been  held  sufli- 
cient ;  as  saying,  'Prove  your  debt  and  I  will  pay  you;' 
'  I  am  ready  to  account,  but  nothing  is  due  to  you.'  And 
much  slighter  acknowledgments  than  these  will  take  a  case 
out  of  the  statute."  And  in  our  notes  will  be  seen  decisions 
or  dicta  which  are  not  less   extreme,  (y)     But  on  what  prin- 

(w)  9  Geo.  IV.  c.  14.  fair  to  iivoid  the  plaintiff  to  whom  he 

(x)  111  Trueinan  y.  Fcnton,  Cowp.54S.  was  iiulelited.     This  was  held  to  be  a 

(y)  Thus,  in  Kicliardson  r.  Foil,  Lortt,  sufficient    acknowk'clijmcnt  to  take  the 

86,  it  appeared  that  the  defendant  met  ease  out  of  tlie  statute,  there  beiny;  no 

a  man  in  a  fair,  and  said  he  went  to  the  other  debt  between  them.  And  ia  Lloyd 


344 


THE   LAW   OF   CONTRACTS. 


[part  II. 


ciple  can  they  rest  for  a  moment,  excepting  that  which  looks 
upon  limitation  as  founded  on  actual  probability  of  payment. 
And  connected  with  these  decisions  grew  up  an  opinion 
among  courts,  that  the  plea  of  the  statute  was  dishonor- 
able, and  not  to  be  favored,  (z)  So  late  as  in  1830,  Mr. 
Justice  Stor?/  (a)  spoke  very  strongly,  —  in  a  passage  we 
shall  presently  have  occasion  to  quote  at  length,  —  of  his 
own  recollection  of  an  extreme  and  inexcusable  endeavor 
of  the  courts  to  take  from  the  operation  of  the  statute  of 
limitations,  all  cases  in  which  any  words  or  phrases  of  the 
supposed  debtor  could  be  strained  into  an  admission  of 
the  debt.  But  even  so  early  as  in  1702,  it  was  said  by  the 
Court  of  King's  Bench,  {b)  that  "  The  statute  of  limitations, 
on  which  the  security  of  all  men  depends,  is  to  be  favored." 
And  we  give  in  a  note,  acknowledgments  which  have  been 
held  insufficient  to  take  the  case  out  of  the  statute,  although, 
if  the    authorities  stated  in  a  previous  note  had  been  fol- 


r.  Maund,  2  T.  R.  760,  it  was  held  that 
a  letter  written  by  the  defendant  to  the 
plaintiff's  attorney  on  being  served  with 
a  writ,  couched  in  ambiguous  terms, 
neither  expressly  admitting  nor  denying 
the  del)t,  should  be  left  to  the  jury  to 
consider  whether  it  amounted  to  an 
acknowledgment  of  the  debt,  so  as  to 
take  it  out  of  the  statute.  And  As/i- 
hu7-st,  J.,  said,  "  It  is  certainly  true  that 
any  acknowledgment  will  take  the  case 
out  of  the  statute  of  limitations.  Now 
thougli  this  letter  is  written  in  anil)iguous 
terms,  there  arc  some  parts  of  it,  from 
which  the  jury  might  perhaps  have  infer- 
red an  acknowledgment  of  the  debt. 
Throughout  the  whole  of  it  the  defendant 
does  not  deny  the  existence  of  the  debt." 
So  in  Bryan  r.  Horseman,  4  East,  599, 
it  was  /ic/d  tiiat  an  acknowledgment  of 
a  debt,  though  accompaincd  with  a 
declaration  by  the  defendant  "  that  he 
did  not  consider  himself  as  owing  the 
plaintiff  a  farthing,  it  being  more  than 
six  years  since  he  contracted,"  was  suf- 
ficient to  take  the  case  out  of  the  statute. 
So  in  Leaper  v.  Tatton,  10  East,  420,  in 
assumpsit  against  the  defendant  as  ac- 
ceptor of  a  bill  of  exchange,  and  upon 
an  account  stated,  evidence  that  the  de- 
fendant acknowledged  his  acce]itancc, 
and  that  he  had  hecn  liaMc,  but  said 
that  he  was  not  liable  tlien,   because  it 


was  out  of  date,  and  that  he  could  not 
pay  it,  it  was  not  in  his  power  to  pay  it, 
was  held  sufficient  to  take  the  case  out 
of  the  statute,  upon  a  plea  of  ardn  von 
accrevit  infra  st.r  ujinos.  And  Lord  Ellen- 
horoiKjh  said,  "As  to  the  sufficiency  of 
the  evidence  of  the  promise,  it  was  an  ac- 
knowledgment by  the  defendant  that  he 
had  not  paid  the  bill,  and  that  he  could 
not  pay  it;  and  as  the  limitation  of  the 
statute  is  only  a  presumption  of  jiayment, 
if  his  own  acknowledgment  that  he  has 
not  paid  be  shown,  it  docs  away  the  stat- 
nte."  And  again,  in  Clark  v.  llougham.  2 
B.  &  Cr.  154,  Boyley  Siiid,  "The  statute  of 
limitations  is  a  bar,  on  the  sui)i)osition, 
after  a  certain  time,  that  a  debt  has  been 
paid,  and  the  vouchers  lost.  Wherever  it 
appears,  by  the  acknowledgment  of  the 
party,  that  it  is  not  jiaid,  that  takes  the 
case  out  of  the  statute.  Leaiicr  r.  Tat- 
ton, 16  East,  420;  Dowthwaitc  ?•.  Tib- 
but,  5  M.  &  S.  75.  And  according  to 
those  cases,  it  makes  no  difference, 
whether  the  acknowledgment  be  ac- 
compaincd by  a  promise  or  refusal  to 
pay.  ]\lountstcphen  v.  Brooke,  9  B.  & 
Aid.  141,  shows  that  an  acknowledgment 
to  a  third  person  is  sufficient." 

(z)  Willetr.  Atterton,  1  \Vm.  Bl.  35  ; 
Perkins  i'.  Burbank,  2  Mass.  81. 

((()  In  Spring  r.  Gray,  5  Mason,  523. 

(b)  In  Green  r.  Kivett,  2  Salk.  421. 


CH.  V. 


STATUTE    OP   LIMITATIONS. 


345 


lowed,  most  of  these,  if  not  all,  must  have  been  held  suffi- 
cient to  constitute  a  new  promise,  (c)     And  at  length,  through 


(c)  Thus,  in  A'Couit  v.  Cross,  3  Bing. 
329,  dc'feiKhiut,  being  arrested  on  a  debt 
more  than  six  years  old,  said,  "  I  know 
that  I  owe  tlie  money,  but  the  bill  I 
gave  is  on  a  three  penny  receipt  stamp, 
and  I  will  never  pay  it;  •'  this  was  held 
not  such  an  acknowledgment  as  would 
revive  the  debt  against  a  plea  of  the 
statute  of  limitations.  And  per  Best, 
C.  J.,  "  The  courts  have  said,  acknow- 
ledgment of  a  del)t  is  sutHcicnt,  without 
any  promise  to  pay  it,  to  take  a  case 
out  of  the  statute.  I  cannot  reconcile 
this  doctrine,  cither  with  the  words  of 
the  statute,  or  the  language  of  the  plead- 
ings. The  replication  to  the  plea  of 
non-assumpsit  iiij'ra  sex  annos  is,  that 
the  defendant  did  undertake  and  promise 
within  six  years.  The  mere  acknow- 
ledgment of  a  debt  is  not  a  promise  to 
pay  it :  a  man  may  acknowledge  a  debt 
which  he  knows  lie  is  incapable  of  paying, 
and  it  is  contrary  to  all  sound  reason- 
ing to  presume  from  such  acknowledg- 
ment tiiat  he  promises  to  pay  it;  yet 
without  regarding  the  circumstance  un- 
der which  an  acknowledgment  was 
made,  the  courts,  on  proof  of  it,  have 
presumed  a  promise.  It  has  been  sup- 
posed that  the  legislature  only  meant  to 
protect  persons  who  had  paid  their 
debts,  but  from  lapse  of  time  had  lost 
or  destroyed  the  proof  of  payment. 
From  the  title  of  the  act  to  the  last 
section,  every  word  of  it  shows  that  it 
was  not  passed  on  this  narrow  ground. 
It  is,  as  I  have  often  heard  it  called  by 
great  judges,  an  act  of  peace.  Long 
dormant  claims  have  often  more  of 
cruelty  than  of  justice  in  them.  Chris- 
tianity forbids  us  to  attempt  enforcing 
the  payment  of  a  debt  which  time  and 
misfortune  have  rendered  the  debtor 
tinable  to  discharge.  The  legislature 
thought  that  if  a  demand  was  not  at- 
tempted to  be  enforced  for  six  years, 
some  good  excuse  for  the  non-payment 
might  be  presumed,  and  took  away  the 
legal  power  of  recovering  it.  I  think, 
if  I  were  now  sitting  in  the  Exchequer 
Chamber,  I  should  say,  that  an  acknow- 
ledgment of  a  debt,  however  distinct 
and  unqualified,  would  not  take  from 
the  party  who  makes  it,  the  protection 
of  the  statute  of  limitations.  But  I 
should  not,  after  the  cases  that  have 
been  decided,  be  disposed  to  go  so  far  in 


this  court,  withoutconsulting  the  judges 
of  the  other  courts."  So  in  Ayton  v. 
Bolt.  4  Bing.  105,  where  the  defendant 
being  applied  to  to  pay  a  debt  barred 
by  the  statute  of  limitations,  said  he 
should  be  luxpijy  to  pay  it  if  he  could  ;  it 
was  held  that  the  plaintitt'must  show  the 
defendant's  ability  to  pay,  the  court  say- 
ing that  the  case  fell  within  the  rule  laid 
down  in-  A'Court  v.  Cross.  And  in 
Tanner  v.  Smart,  6  B.  &  Cr.  603,  in 
assumpsit,  brought  to  recover  a  sum  of 
money,  the  defendant  pleaded  the  statute 
of  limitations,  and  upon  tiiat  issue  was 
joined.  At  the  trial  tlie  plaintiff  proved 
the  following  acknowledgment  by  the  de- 
fendant within  six  years ;  "  I  cannot  pay 
the  debt  at  present,  but  I  will  pay  it  as 
soon  as  I  can  ; '"  Held,  that  this  was  not 
sufficient  to  en  title  the  plantiffto  a  verdict, 
no  proof  being  given  of  tbe  defend- 
ant's aliility  to  pay.  And  Lord  Terten- 
den  said,  "  There  are,  undoubtedly,  au- 
thorities that  the  statute  is  founde*  on 
tbe  presumption  of  payment,  that  what- 
ever repels  that  presumption  is  an  an- 
swer to  the  statute,  and  that  any  acknow- 
ledgment which  repels  that  presumption 
is,  in  legal  effect,  a  promise  to  pay  the 
debt;  and  that  though  such  an  acknow- 
ledgment is  accompanied  with  only  a 
conditional  promise  or  even  a  refusal 
to  pay,  the  law  considers  the  condition 
or  refusal  void,  and  considers  the  ac- 
knowledgment of  itself  an  uncondi- 
tional answer  to  the  statute ;  and  if 
these  authorities  be  unquestionable,  the 
verdict  which  has  been  given  for  the 
plaintiff  ought  to  stand,  and  the  rule  for 
a  new  trial  ought  to  be  discharged.  But 
if  there  arc  conflicting  authorities  upon 
the  point,  if  the  principles  upon  which 
the  authorities  I  have  mentioned  are 
founded,  ajipear  to  be  doubtful,  and  the 
opposite  authorities  more  consonant  to 
legal  rules,  we  ought,  at  least,  to  grant 
a  new  trial,  that  the  opportunity  may- 
be offered  of  having  the  decision  of  a 
court  of  error  upon  the  point,  and  that 
for  the  future  we  may   have  a  correct 

standard  l)y  which  to  act _ 

If  an  acknowledgment  had  the  effect, 
which  the  cases  in  the  j)laiitiff's  favor 
attribute  to  it,  one  should  have  ex- 
pected that  the  replication  to  a  plea  of 
the  statute  would  have  pleaded  the 
acknowledgment   in   terras,   and  relied 


346 


THE   LAW    OF    CONTRACTS. 


[part  ir. 


a  series  of  decisions,  going  to  show  tliat  the  statute  is  in- 
tended for  the  relief  and  quiet  of  defendants,  the  law  reached 
the  conclusion  justly  and  forcibly  expressed  by  Mr,  Justice 
Slori/,  in  the  case  to  which  we  have  before  referred,  (cc)  He 
says,  "  I  consider  the  statute  of  limitations  a  highly  benefi- 
cial statute,  and  entitled,  as  such,  to  receive,  if  not  a  liberal, 
at  least  a  reasonable  construction,  in  furtherance  of  its  mani- 
fest object.  It  is  a  statute  of  repose  ;  the  object  of  which  is 
to  suppress  fraudulent  and  stale  claims  from  springing  up  at 
great  distances  of  time,  and  surprising  the  parties,  or  their 
representatives,  when  all  the  proper  vouchers  and  evidence 
are  lost,  or  the  facts  have  become  obscure,  from  the  lapse  of 
time,  or  the  defective  memory,  or  death,  or  removal  of  wit- 


upon  it  as  a  bar  to  the  statute ;  whereas 
the  constant  replication,  ever  since  the 
statute,  to  let  in  evidence  of  an  acknow- 
ment,  is,  that  the  cause  of  action  ac- 
crued (or  the  defendant  made  the  pro- 
mise^ in  the  declaration)  within  six 
years ;  and  the  only  principle  upon 
which  it  can  be  held  to  bo  an  answer  to 
the  statute  is  this,  that  an  acknowledg- 
ment is  evidence  of  a  new  promise, 
and,  as  such,  constitutes  a  new  cause  of 
action,  and  supports  and  establishes 
the  promises  which  the  declaration 
states.  Upon  this  principle,  whenever 
the  acknowledgment  supports  any  of 
the  promises  in  the  declaration,  the 
plaintift'  succeeds ;  when  it  does  not 
support  them,  (though  it  may  show 
clearly  that  the  debt  never  has  been  paid, 
but  is  still  a  subsisting  debt,)  the 
plaintiff  fails."  His  lordship  then  pro- 
ceeds to  an  elaborate  review  of  the  au- 
thorities, and  continues;  —  ''AH  these 
cases  proceed  upon  the  jjrinciplc  that 
under  the  ordinary  issue  on  the  statute 
of  limitations  an  acknowledgment  is 
only  evidence  of  a  promise  to  jiay  ;  and 
unless  it  is  conformable  to,  and  main- 
tains the  promises  in  the  declaration, 
though  it  may  show  to  demonstration 
that  the  debt  has  never  been  paid,  and 
is  still  subsisting,  it  has  no  effect."  And 
sec  Eearn  v.  Lewis,  4  M.  &  V.  I  ; 
£rigstockc  t;.  Smith,  1.  C.  &  M.  483; 
Haydon  v.  Williams,  7  Bing.  103; 
Coryr.  Bretton,  4  C.  &  P.  462;  Mor- 
rell  V.  Freth.  3.  M.  &  W.  402  :  Kout- 
ledge  V.  Kamsav.  8  Ad.  and  El.  221; 
Williams  r.  Grifbth,  3  Kxch.  335  ;  Caw- 
Icy  V.  Fiunell,  12  C.  B.  291  ;  Smith  v. 


Thorn,  10  Eng.  Law  and  Eq.  391  ; 
Hart  V.  Prendergast,  14  M.  &  W.  741. 
In  this  last  case  Parke,  B.,  said,  "  There 
is  no  doubt  of  the  principle  of  law  ap- 
plicable to  these  cases,  since  the  deci- 
sion in  Tanner  v.  Smart;  namely,  that 
the  plaintiff  must  either  show  an  un- 
qualified acknowledgment  of  the  debt, 
or,  if  he  show  a  promise  to  pay,  coupled 
with  a  condition,  he  must  show  perform- 
ance of  the  condition  ;  so  as  in  either 
case  to  fit  the  promise  laid  in  the  decla- 
ration, which  is  a  promise  to  pay  on 
request.  The  case  of  Tanner  v.  Smart 
put  an  end  to  a  series  of  decisions 
which  were  a  disgrace  to  the  law,  and  I 
trust  we  shall  be  in  no  danger  of  falling 
into  the  same  course  again."  For 
recent  American  cases  to  the  same 
effect,  see  Gilkyson  v.  Larue,  6  W.  & 
S.  213;  Morgan  v.  Walton,  4  Penn. 
St.  321;  Laforge  v.  Jaync,  9  id.  410; 
Christy  v.  Flcmington,  "lO  id.  129;  Gil- 
lingham  v.  Gillingham,  1  7  id  303  ;  Kvlc 
V.  Wells,  id.  286;  Bell  v.  Crawford;  8 
Gratt.  110;  Boss  v.  Ross,  20  Ala.  10.5  ; 
Ten  Eyck  u.  Wing.  1  Manning,  (Mich.) 
40;  Buttcrfield  r.  Jacobs,  15  iw  H.  140; 
Ventris  v.  Shaw,  14  id.  422;  Sherman 
IK  Wakeman,  11  Barl).  254:  Ellicot  y. 
Nichols,  7  Gill,  85;  Mitchell  r.  Sell- 
man,  5  Maryland,  376  ;  Carruth  r.  Paige, 
22  Verm.  172;  Cooper  ;'.  Parker,  25  id. 
502;  Hill  v.  Kendall,  id.  528;  Brainard 
V.  Buck,  id.  573;  l^ritchard  v.  Howell, 

1  Wisconsin,  131  ;  Dcloach  ;•.  Turner,  G 
Bich.  117,  7  id.  143;  Butler  r.  Winters, 

2  Swan,  (Tcnn.)  91.  And  see  the  lead- 
ing case  of  Bell  V.  ]\Iorrison,  1  Pet.  351. 

{cc)  Sec  ante,  p.  344,  n.  (a.) 


CH.    v.]  STATUTE    OF    LIMITATIONS.  347 

iiesses.  The  defence,  therefore,  which  it  puts  forth,  is  an 
honorable  defence,  which  does  not  seek  to  avoid  the  payment 
of  just  claims  or  demands,  admitted  now  to  be  due,  but 
which  encounters,  in  the  only  practicable  manner,  such  as 
are  ancient  and  unacknowledged ;  and,  whatever  may  have 
been  their  original  validity,  such  as  are  now  beyond  the 
power  of  the  party  to  meet,  with  all  the  proper  vouchers  and 
evidence  to  repel  them.  The  natural  presumption  certainly 
is,  that  claims  wliich  have  been  long  neglected  are  unfounded, 
or  at  least  are  no  longer  subsisting  demands.  And  this  pre- 
sumption the  statute  has  erected  into  a  positive  bar.  There 
is  wisdom  and  policy  in  it,  as  it  quickens  the  diligence  of 
creditors,  and  guards  innocent  persons  from  being  betrayed 
by  their  ignorance,  or  their  over  confidence  in  regard  to  trans- 
actions which  have  become  dim  by  age.  Yet,  I  well  remem- 
ber the  time  when  courts  of  law  exercised  what  I  cannot 
but  deem  a  most  unseemly  anxiety  to  suppress  the  defence  ; 
and  when,  to  the  reproach  of  the  law,  almost  every  effort  of 
ingenuity  was  exhausted  to  catch  up  loose  and  inadvertent 
phrases  from  the  careless  lips  of  the  supposed  debtor,  to  con- 
strue them  into  admissions  of  the  debt.  Happily,  that  period 
has  passed  away;  and  judges  now  confine  themselves  to  the 
more  appropriate  duty  of  construing  the  statute,  rather  than 
devising  means  to  evade  its  operation." 


SECTION  II. 
OF   A   NEW   PROMISE. 

The  law  may  not  be  yet  entirely  settled,  as  to  what  shall  con- 
stitute the  new  jiromise  which  removes  the  bar  of  the  statute. 
But,  without  now  taking  into  consideration  Lord  Tenterden's 
act,  requiring  the  new  promise  to  be  in  writing,  we  think  we 
may  draw  from  the  multitudinous  decisions  on  the  subject, 
the  following  conclusions,  as  established  law. 

The  first  and  most  general  of  these  is,  that  there  must  be 
either  an  express  promise,  or  an  acknowledgment  expressed 
in  such  words,  and  attended  by  such  circumstances  as  give 


148 


THE   LAW   OF   CONTRACTS. 


[part  II. 


to  it  the  meaning,  and  therefore  the  force  and  effect  of  a  new- 
promise,  {d)  Such,  we  think,  the  rule,  although  it  must  be 
admitted  that  it  has  been  sometimes  applied,  even  of  late, 
with  great  laxity. 

Whether  an  acknowledgment  is  thus  equivalent  to  a  new 
promise,  or  is  suflicicnt  to  remove  the  bar  of  the  statute,  is  a 
question  which  must  be  determined  either  by  the  court  or  the 
jury ;  and  it  does  not  seem  to  be  quite  settled  within  which 
province  it  lies.  We  should  say,  however,  in  general,  that 
where  this  question  is  one  of  intention,  and  is  to  be 
gathered  from  the  words  spoken,  and  from  the  circum- 
stances of  the  case  to  be  considered  in  connection  with 
the  words,  there  it  is  for  the  jury,  under  the  instruction  of 
the  court  as  to  the  principles  applicable  to  the  question,  to 
determine  whether  the  acknowledgment  be  sufficient  or  not. 
But  where  the  question  is  one  of  the  meaning  of  words  only, 
and  especially  where  the  words  relied  upon  are  written,  and 
the  question  becomes,  in  effect,  one  of  the  construction  of  a 
written  docviment,  there  it  is  the  duty  of  the  court  to  make, 
and  of  the  jury  to  receive,  a  distinct  direction,  (e) 


(d)  Sec  upon  this  point  the  leading  case 
of  Tanner  v.  Smart,  6  B.  &  Cr.  603, 
cited  in  the  preceding  note.  "  Accord- 
ing to  the  recent  cases,"  says  Parke,  B., 
in  MorrcU  v.  Frith,  3  M."  &  W.  405, 
'■  the  document,  in  order  to  take  the 
case  out  of  the  statute,  must  either  con- 
tain a  promise  to  pay  tlie  deht  on  re- 
quest, or  an  aciinowledgment  from 
which  such  promise  is  to  he  inferred." 
In  Hart  v.  Prendergast,  14  M.  &  \V.  746, 
liolfe,  B.,  said  "  The  prinitiple  is  said  to 
he,  that  the  document  must  contain  either 
a  promise  to  pay  the  debt,  or  an  ac- 
knowledgment from  which  such  a  jn'o- 
mise  is  to  be  inferred.  Perhaps  it  would 
he  more  correct  to  say,  tliat  it  must,  in 
all  cases,  contain  a  promise  to  pay,  but 
that  from  a  siinj)le  acknowledgment  tiie 
law  implies  a  promise  ;  but  tliere  must, 
in  all  cases,  he  a  promise,  in  order  to 
support  the  declaration.''  Again,  in 
Bell  V.  Morrison,  1  Pet.  362,  Mr.  Justice 
Storij  says,  "  If  the  bar  is  sought  to  be 
removed  l)y  the  proof  of  a  new  promise, 
that  promise,  as  a  new  cause  of  action, 
ought  to  !)e  i)rovcd,  in  a  clear  and  ex- 
plicit manner,  and  be  in  its  terms  un- 
equivocal and  determinate  ;  and,  if  any 


conditions  are  annexed,  they  ought  to 
be  shown  to  be  performed.  If  there  be 
no  express  promise,  but  a  promise  is  to 
be  raised  by  implication  of  law  from  the 
acknowledgment  of  the  party,  such  ac- 
knowledgment ought  to  contain  an  un- 
qualified and  direct  admission  of  a  pre- 
vious, subsisting  debt,  which  the  party 
is  liable  and  willing  to  pay.  If  there 
be  accompanying  circumstances,  which 
repel  the  presumption  of  a  promise  or 
intention  to  j)ay ;  if  the  expressions 
be  equivocal,  vague,  and  indeterminate, 
leading  to  no  certain  conclusion,  but  at 
best  to  probable  inferences,  which  may 
ali'cct  different  minds  in  dittercnt  ways; 
we  think  they  ought  not  to  go  to  a  jury 
as  evidence  of  a  new  jiromisc  to  revive 
the  cause  of  action.  Any  other  course 
would  open  all  the  mischiefs  against 
wiiich  tlie  statute  was  intended  to  guard 
innocent  persons,  and  expose  them  to 
the  dangers  of  being  entra])i)ed  in  care- 
less conversations,  and  betrayed  by  prc- 
juries."  See  further  the  Knglish  and 
American  cases  cited  in  the  preceding 
note. 

(e)  In   Lloyd  v.  Maund,  2  T.  II.  700, 
the  acknowledgment  was  contained  in 


en.  v.] 


STATUTE    OF    LIMITATIONS. 


340 


It  is  not  necessary  that  the  acknowledgment  should  be  of 
any  precise  amount;  (/)  but  if  there  be  an  admission  of  any 
debt,  and  of  legal  liability  to  pay  it,  evidence  may  be  con- 
nected with  this  admission  to  show  the  amount;  (g-)  and 
even  if  the  parties  differ  as  to  the  amount,  an  admission 
of  the  debt  may  remove  the  bar  of  the  statute.  (//)  But  the 
acknowledgment  must  not  be  of  a  mere  general  indebted- 
ness, (i)  It  must  be,  on  the  one  hand,  broad  enough  to  in- 
clude the  specific  debt  in  question,  (j)  and  on  the  other,  suffi- 
ciently precise  and  definite  in  its  terms  to  show  that  this 
debt  was  the  subject-matter  of  the  acknowledgment.  (A;)  So 
a  general  direction  to  pay  debts,  or  a  general  provision  for 
their  payment,  does  not  operate  as  a  new  promise  by  the 
testator.  (/) 

As  the  acknowledgment  must  be  such  as  to  .be  equivalent 
to  a  promise,  if  it  be  in  other  respects  full  and  complete,  but 


a  letter,  and  yet  the  question  whetlicr 
the  acknowlcdt^tnent  was  sufficient  was 
submitted  to  the  jury.  The  same  course 
was  pursued  in  Frost  v.  Bcngough,  1 
Bing.  2G6.  And  in  Bird  v.  Gammon, 
3  Bnig.  N.  C.  883,  where  the  like  course 
was  pursued,  and  a  new  trial  was  moved 
for,  on  that  among  other  grounds,  Tin- 
dal.  C.  J.,  said,  '•  The  first  objection 
taken  for  the  defendant  is,  that  it  was 
left  to  the  jury  to  say  what  was  the 
effect  of  the  letter.  But  by  a  chain  of 
cases,  from  L^>yd  v.  Maund  to  Frost  v. 
Bengough  and  others,  it  appears  that 
such  has  been  the  constant  course."  But 
the  authority  of  these  cases  was  much 
shaken,  if  not  entirely  overtlnown, 
by  the  case  of  MorrcU  v.  Frith,  3  M. 
&  W.  402.  See  ante,  p.  4  and  .'3.  And 
see  Clarke  v.  Dutcher,  9  Cow.  674; 
Cha])in  c.  Warden,  13  Verm.  5C0;  Mar- 
tin V.  Broach,  C  Geo.  21 ;  Love  v.  Hack- 
ett,  id.  480 ;  Watkins  v.  Stevens,  4 
Barb.  168. 

(/)  Thus,  in  Dickinson  v.  Hatfield,  1 
M.  tk,  l\ob.  141,  Lord  Tenderden  ruled 
that  a  promise  lo  j)ay  "  the  balance" 
due,  is  sullicient  to  take  a  case  out  of  ftie 
statute  of  limitations,  although  no  men- 
tion is  made  of  the  amount  of  the  bal- 
ance. And  see,  to  the  same  effect, 
Leciimere  v.  Fletcher,  1  Cr.  &  M.  623; 
Bird  V.  Gammon,  3  Bing.  N.  C.  883  ; 
Waller  v.  Lacv,  1  M.  &  G.  54  ;  Gardner 
V.  M'Mahon,  3"  Q.  B.  561  ;   Williams  v. 

VOL.    II.  30 


Griffith,  3  Exch.  335;  Ilazlebaker  v. 
Beeves,  12  Penn.  St.  264 ;  Davis  v. 
Steincr,  14  id.  275;  Dinsmore  w.  Dins- 
more,  21  Maine,  433. 

{(j)  Cheslyn  v.  Dalby,  4  Y.  &  Col. 
238  ;  Spong  v.  Wright,  9  M.  &  W.  629; 
Barnard  v.  Bartholomew,  22  Pick.  291. 
Sec  also  cases  cited  in  preceding  note. 
But  sec  Kittrege  v.  Brown,  9  N.  H. 
377. 

(h)  Colledge  v.  Horn,  3  Bing.  119; 
Gardner  v.  M-Mahon,  3  Q.  B.  561. 

((")  jMoore  v.  Hyman,  13  Ircd.  272  ; 
Shaw  V.  Allen,  1  Bushee,  (N.  Car.)  58; 
McBride  v.  Gray,  id.  420 ;  Bobbins  v. 
Farley,  2  Strobh.  348;  liarbold  v. 
Kuntz,  16  Penn.  St.  210. 

{j)  Barnard  y.  Bartholomew,  22  Pick. 
291. 

[k)  Id. ;  Stafford  v.  Bryan,  3lVend. 
532;  Arey  y.  Stephenson,  11  Ired.  86; 
Martin  r.  Broad,  6  Geo.  21;  darker. 
Dutcher,  9  Cow.  674.  But  if  only  one 
debt  is  shown  to  exist,  the  acknowledg- 
ment will  be  presumed  to  refer  to  that. 
Woodbridge  v.  Allen,  12  Met.  470; 
Guy  r.  Tarns,  6  Gill,  82. 

■  (/)  Bloodgood  V.  Bruen,  4  Sandf. 
427  ;  Boosevelt  i'.  Mark,  6  Johns.  Ch. 
266  ;  Carrington  i\  Manning,  13  Ala. 
611;  Braxton  ;;.  Wood,  4  Gratt.  25; 
Murrav  v.  Mechanics'  Bank,  4  Edw. 
Ch.  567  ;  Walker  v.  Campbell.  1  Hawks, 
304  ;  Freake  v.  Cranefeldt,  3  My.  &  Cr. 
499;  Evans  i>.  Tweedy,  1  Beav.  55. 


350  THE   LAW   OF    CONTRACTS.  [PART  II. 

is  expressly  guarded  and  qualified  by  the  maker  so  that  it 
negatives  a  promise,  or  cannot  be  construed  into  a  promise, 
it  is  not  su(Hcient.  (m)  As,  if  the  debtor  says,  "  I  know  that 
I  owe  the  money,  but  I  have  a  legal  defence,  and  will  not 
pay  it,"  this  is  not  enough  to  prevent  the  operation  of  the 
statute  ;  (w)  and  therefore  we  say  that  the  acknowledgment 
must  be  not  only  of  the  debt,  but  of  a  legal  liability  to  pay 
the  debt.  It  is  true  that  the  naked  acknowledsrment  of  the 
debt  implies,  and  as  it  were  contains,  an  acknowledgment  of 
legal  liability ;  but  there  is  no  room  for  this  implication, 
where  this  liability  is  denied  and  excluded ;  because  the 
statute  is  not  one  of  presumption,  but  of  repose.  Therefore, 
also,  the  acknowledgment  may  be  conditional,  or  subject  to 
whatever  qualification  the  debtor  thinks  proper  to  make. 
And  in  that  case,  the  acknowledgment  becomes  a  new  pro- 
mise, or,  in  other  words,  the  bar  of  the  statute  is  removed, 
only  when  the  creditor  can  show  that  the  condition  has  been 
performed  ;  or  that  the  event  has  happened,  or  the  time 
arrived,  by  a  reference  to  which  the  acknowledgment  was 
qualified,  [o)  And  if  an  acknowledgment  be  on  its  face,  or 
in  its  direct  meaning,  full  and  unconditional,  it  is  competent 
to  show,  by  other  admissible  evidence,  as  of  the  res  g-estcc, 
that  it  was  not  intended  as  an  acknowledgment,  but  for 
a  different  purpose,  {p)     And  by  parity  of  reason,  it  would 

(?n)  In  Tanner  v.  Smart,  G  B.  &  Cr.  there  be  any  thing  said  !lt  the  time  of 

609,    Lord    Tenderden   said,  "Upon   a  the  acknowledgment  to  repel  tlie  infer- 

a  general  acknowledgment,  where  no-  once  of  a  promise,  the  acknowledgment 

thing  is  said  to  prevent  it,  a   general  will  not  take  a  case  out  of  the  statute 

promise  to  i)ay  may  and  ought  to  be  of  limitations."      So    in    Danforth   v. 

implied;  but  where  the  party  guards  his  Culver,    11    Johns.  14G,  which  was  an 

acknowledgment,   and   accompanies    it  action  on  a  promissory  note,  to  which 

with  an  express  declaration  to  prevent  the  statute  of  limitations  was  pleaded, 

any  such  implication,  why  shall  not  the  it  appeared  that  within  a  year  of  the 

rule   '  cxpressum  facit  cessare  taciturn'  trial  and  after  the  commencement   of 

apply  1  "      And  see  the  cases  cited  ante,  the  suit,  the  defendant,  on  being  shown 

345,  n.  (c.)  the  note,  admitted  that  he  had  executed 

(n)  A'Court  v.  Cross,  3  Bing.  329.  In  it,  but  said  it  was  outlawed,  and  that  he 

this  case  the  defendant  being  arrested  meant  to  avail  himself  of  the  statute  of 

on  a  debt  more  than  six  years  old,  said,  limitations;  and  this  was  held  not  to  be 

"  I  know  that  I  owe  the  money,  but  the  sifflicient  evidence  of  a  promise  to  pay 

bill  I  gave  is  on  a  three  penny  receipt  within  six  years. 

stamp,  and  I  will  never  pay  it;"  and  (o)    Tompkins    v.   Brown,    1    Denio, 

this  was  Ac'W  not  such  an  acknowlcdg-  247;    Hill   v.   Kendall,    25  Verm.  528 ; 

ment  as  would  revive  the  debt  against  a  Ilumplircys  r.  Jones,  14  M.  &  W.  1  ; 

plea  of  the  statute  of  limitations.     And  Butterfielil  v.  Jacobs,  15  N.  II.  140.  And 

Best,  C.  J.,  said,  "  There  are  many  cases  see  cases  cited  ante,  p.  345,  n.  (c.) 

from  which  it  may  be  collected,  "that  if  (/))  Cripps  v.  Davis,  12  M.  &  W".  159. 


cii.  v.] 


STATUTE    OF   LIMITATIONS. 


551 


seem  to  be  competent  to  show  that  doubtful  expressions  were 
meant  and  understood  by  the  parties  to  operate  as  a  condi- 
tion or  qualification. 

The  acknowledgment  must  be  voluntary ;  {q)  but  whether 
this  applies  to  admissions  made  under  process  of  law,  as  by 
a  bankrupt  on  his  examination,  is  not  quite  certain  ;  but  the 
present  weight  of  authority  is,  perhaps,  in  favor  of  the  suffi- 
ciency of  this  acknowledgment,  (r)  We  should  doubt,  how- 
ever, whether  this  bare  acknowledgment  ought  to  be  held  as 
the  equivalent  of  a  new  promise. 

It  is  uncertain  whether  every  new  item  and  credit  in  a 
mutual  and  running  account,  given  by  one  party  to  the  other, 
is  an  admission  and  acknowledgment  of  an  unsettled  account, 
and  evidence  of  a  promise  to  pay  the  balance,  whatever  that 
account  and  balance  may  appear  to  be,  so  as  to  take  the 
whole  account  out  of  the  statute.  The  affirmative  of  this 
question  is  maintained  by  numerous  decisions ;  (5)  but  we 


iq)  Arnold  v.  Downing,  11  Barb.  554. 

(r)  In  Eicke  v.  Nokes,  1  M.  &  Rob. 
359,  it  was  held  tliat  an  entry,  in  a 
bankrupt's  examination,  of  a  certain  sum 
being  due  to  A.,  is  a  suflicient  acknowl- 
edgment to  take  the  case  out  of  the  stat- 
ute of  limitations.  But  in  Brown  v. 
Bridges,  2  Miles,  424,  where  A.  &  B., 
being  indebted  to  C,  filed  their  petition 
for  the  bcnetit  of  the  insolvent  laws,  in 
which  they  stated,  in  their  schedule  of 
debts,  the  debt  due  to  C. ;  it  was  held 
that  this  was  not  a  sufficient  acknowl- 
edgment to  take  tlie  debt  out  of  the 
statute.  And  the  court  said,  ''  An  ac- 
knoirltdi/ment  of  a  debt,  to  jircvent  the 
operation  of  the  statute  of  limitations, 
must  at  least  be  consistent  with  a  pro- 
mise to  pay.  This  is  the  law  in  Tenn- 
sylvania.  The  acknowledgment  in  de- 
fendant's petition  for  the  benefit  of  the 
insolvent  laws  is  not  of  this  character, 
for  tiie  very  basis  on  which  an  insolvent 
asks  his  discharge  is  that  he  is  unable  to 
pay  his  debts.  How  this  can  be  tortured 
into  a  promise  to  pay,  or  as  being  consis- 
tent with  such  a  promise,  we  are  at  a  loss 
to  discover."  And  see,  to  the  same  effect, 
Christy  j;.  Flemington,  10  Pcnn.  St.  129. 
See  further  Kennett  v.  Milbank,  8  Bing. 
38;  Wellman  v.  Southard,  30  Maine, 
425  ;  Pott  V.  Clcgg,  16  M.  &  W.321. 
(s)  A  leading  case  upon  this  point  is 


Catling  V.  Skoulding,  6  T.  R.  189.  It 
was  there  held,  that  if  there  be  a  mutual 
account  of  any  sort  between  the  plain- 
tiff and  defendant,  for  any  item  of  which 
credit  has  been  given  within  six  years, 
that  is  evidence  of  an  acknowledgment 
of  there  being  such  an  open  account  be- 
tween the  parties,  and  of  a  promise  to 
pay  the  balance,  so  as  to  take  the  case 
out  of  the  statute  of  limitations.  And 
Lord  Kenijon  said,  "  It  is  not  doubted 
but  that  a  promise  or  acknowledgment 
within  six  years  will  take  the  case  out 
of  the  statute  ;  and  the  only  question  is, 
whether  there  is  not  evidence  of  an 
acknowledgment  in  the  present  case. 
Here  are  mutual  items  of  account ;  and 
I  take  it  to  have  been  clearly  settled,  as 
long  as  I  have  any  memory  of  the 
practice  of  the  courts,  that  every  new 
item  and  credit  in  an  account,  given  by 
one  party  to  the  other,  is  an  admission 
of  there  being  some  unsettled  account 
between  them,  the  amount  of  which  is 
afterwards  to  be  ascertained ;  and  any 
act  which  the  jury  may  consider  as  an 
acknowledgment  of  its  being  an  open 
account,  is  sufficient  to  take  the  case  out 
of  the  statute.  Daily  experience  teaches 
us  tliat  if  tins  rule  be  now  overturned, 
it  will  lead  to  infinite  injustice. "  Perhaps 
tliis  decision  is  consistent  with  the  views 
then  prevailing  in  respect  to  new  pro- 


'dbii 


THE   LAW   OF   CONTRACTS. 


[part  II. 


think  these  decisions  are  inconsistent  with  the  views  which 
now  prevail  in  regard  to    new  promises   and    acknowledg- 


miscs  and  iicknowlcclgmcnts  ;  but  it  is 
submitted  that  it  cannot  be  sustained 
upon  principle,  since  tbe  decision  in  Tan- 
ner V.  Smart  in  England,  and  Bell  v. 
Morrison  in  tbis  country.  And  tbis  is 
tbe  view  adopted  by  tbe  Superior  Court 
of  New  Hampsbirc,  in  Blair  v.  Drew, 
6  N.  H.  2;!5 ;  ibougb  some  of  tbe  reason- 
ing of  Parker,  J.,  goes  even  furlber.  In 
delivering  the  judgment  of  tbe  court,  be 
says,  "  Upon  wbat  principle  is  it,  tliat  a 
sale  of  an  article  upon  credit  is  an  ad- 
mission of  anytbing  else  except  tbat  tbe 
subject-matter  of  tbat  transaction  bad 
existence?  Upon  what  principle  does  it 
admit  tbe  existence  of  an  unsettled  ac- 
count upon  tbe  otber  side,  or  draw  after 
it  anytbing  else?  If,  in  tbe  nature  of 
tbings,  tbere  could  not  be  an  account 
consisting  of  a  single  item,  it  migbt  well 
be  said  that  the  charge  of  one  item  was 
an  admission  of  something  more.  If, 
in  the  ordinary  transaction  of  business, 
there  could  not  be  an  account  upon  one 
side,  -without  an  account  upon  tbe  other 
to  balance  it,  in  whole  or  in  part,  there 
■would  lie  some  foundation  for  such  ad- 
mission. But  every  day's  experience 
negatives  uU  tbis ;  accounts  exist  upon 
one  side  only ;  and  of  no  more  than  a 
single  item.  The  purchase  is  made — 
the  credit  is  given — and  this  is  all  tbe 
dealing  between  the  parties.  Many  of 
the  decisions  upon  tbe  statute  of  limit- 
ations, much  controverted,  if  not  ex- 
ploded,Verc  founded  on  tbe  asumption, 
that  tbe  statute  was  based  upon  a 
presumption  of  payment,  and  of  con- 
sequence any  admission  tbat  the  debt 
was  unpaid  rebutted  tbe  presumption 
and  took  tbe  case  out  of  the  statute. 
Granting  the  premises,  tbe  conclusion 
followed  well  enough.  But  even  upon 
tbat  view  of  tbe  statute,  the  position  is 
wholly  untenable  tbat  an  item  of  credit 
constitutes  an  admission  of  another  pre- 
existing debt  upon  the  otiier  side,  and 
an  admission,  moreover,  tbat  it  has  not 
been  paid.  Aside  from  t!ic  statute  of 
limitations,  such  doctrine  of  admission 
would  receive  no  countenance  whatever. 
No  jurist  would  ever  argue,  tbat  because 
he  had  proved  one  item  of  account,  it  was 
any  evidence  from  which  a  jury  migbtin- 
ferand  find  other  distinct  and  independ- 
cntitcnis.  Still  less  v.ould  it  lie  contended 
that  an  account,  proved  by  the  plaintiff, 


was  an  admission  which  furnished  evi- 
dence in  favor  of  another  account  of  in- 
dependent items,  oH'ered  by  the  defend- 
ant, or  tbat  it  was  of  any  weight  to  prove 
tbe  defendant's  account,  even  in  con- 
nection with  otber  evidence.  And  if  it 
furnishes  no  evidence  of  admission,  in 
such  case,  it  can  raise  no  fair  admission 
as  against  the  statute.  No  admission, 
then,  of  any  account  upon  the  otber  side, 
can  be  fairly  inferred  from  tbe  act  of 
making  a  charge  on  account  against 
any  individual.  It  is  no  admission  of 
an  unsettled  account,  beyond  tbe  very 
charge  itself.  It  does  not  imply  that  the 
party  giving  the  credit  has  any  other 
item  of  claim  against  the  party  charged. 
Still  less  docs  it  imply  tbat  tbe  party 
against  whom  the  charge  is  made,  has 
an  account  to  balance  it,  in  whole,  or  in 
part.  It  is  of  itself  a  distinct  and  in- 
dependent transaction ;  and  it  might 
with  just  as  much  propriety  be  said  tbat 
a  party  making  a  charge  of  an  item  of 
account,  thereby  admits  that  it  is  paid, 
in  whole  or  in  part,  as  to  say  that  he 
thereby  admits  tbe  existence  of  an  un- 
settled" account  against  himself.  Nay, 
it  would  be  safer  for  the  individual  to 
bold  him  as  making  such  an  admission, 
which  could  extend  no  farther  than  in 
discharge  of  the  demand  which  consti- 
tuted the  acknowledgment ;  Mbereas, 
holding  the  admission  to  extend  to  an 
unsettled  account  against  himself,  may 
suliject  bim,  in  connection  with  fabricat- 
ed evidence,  or  from  a  loss  of  vouchers 
or  testimony,  to  the  payment  of  pre- 
tended claims  upon  tbe  otber  side,  of  an 
amount  vastly  beyond  the  small  item, 
by  tbe  charge  of  which  be  has  drawn 
down  such  consequences  upon  himself 
We  cannot  deem  it  any  objection  to  our 
reasoning  upon  this  subject,  that  there 
may  be  cases  where  an  account  upon 
one  side  may  be  recovered,  while  one 
u])on  the  other  side  of  older  date  is  bar- 
red. If  it  be  so  it  will  arise  from  the 
larlics  of  tbe  party.  If  articles  upon  one 
side  are  delivered  in  payment  of  a  prior 
existing  account  upon  tbe  other,  tbe 
delivery  raises  no  cause  of  action.  If 
not  delivered  in  jiaymcnt,  each  account 
is  distinct  and  independent,  as  much  so 
as  ))romissory  notes  held  upon  the  one 
side  and  the  other  ;  and  there  is  as  much 
reason  why  a  party  should   not   avail 


cu.  v.] 


STATUTE    OF   LIMITATIONS. 


353 


ments  ;  and  wc  doubt  whether  they  would  be  followed  in 
any  jurisdiction  where  the  question  is  still  open. 


SECTION  III. 

OF   PART   PAYMENT. 


A  part  payment  of  a  debt  has  always  been  held  to  take 
it  out  of  the  statute ;  (t)  the  six  years  being  counted  from 
such  payment.  And  this  is  so,  though  the  payment  is  made 
by  goods,  or  chattels,  which  it  is  agreed  shall  be  given  and 
received  as  payment.  (//)  And  even  where  the  debtor  gives 
the  creditor  his  negotiable  promissory  note  or  bill  of  ex- 
change, on  account  of  a  larger  debt,  (r)   it  is  held  to  operate 


himself  of  an  account,  which  is  barred 
by  the  statute,  in  discharjijc  of  another 
account  due  from  iiim,  and  to  whicii  he 
has  no  other  defence,  as  there  is  that  he 
shouUl  not  avail  himself  of  a  promissory 
note  which  is  barred,  in  the  same  way, 
or  that  he  should  not  recover  that,  or 
any  other  demand  whicli  is  barred,  in 
an  independent  suit  upon  the  demand 
itself.  We  have  endeavored  to  examine 
this  subject  with  all  the  care  and  atten- 
tion wliicli  the  importance  of  the  prin- 
ciple involved,  and  a  high  respect  for  the 
learned  tribunals  whose  decisions  have 
been  adverse  to  tiie  oi)inion  now  express- 
ed, demand  of  us.  Consistently  with 
the  principles  of  repeated  decisions  in 
this  court,  that  in  order  to  raise  a  new 
promise  by  implication  from  an  acknowl- 
edgment, it  must  contain  a  direct  and 
unqualified  admission  of  a  subsisting 
debt,  which  the  party  is  liable  and  will- 
ing to  pay;  we  cannot  liold  that  one 
item  in  an  account  has  of  itself  any  force 
or  effect  to  take  other  items,  wliich  would 
otherwise  be  barred,  out  of  the  statute." 
And  the  same  view  is  adopted  in  Ken- 
tucky. Lansdale  i\  Brashear,  3  Monr. 
330;' Smith  v.  Dawson,  10  13.  Monr. 
112.  And  in  Tennessee.  Craighead  v. 
The  Bank,  7  Ycrg.  399.  But  it  must  be 
admitted  that  the  main  current  of  Am- 
erican decisions  is  still  in  accordance 
with  Catling  v.  Skoulding.  Sec  Kimball 
V.  Brown,  7  Wend.  322 ;  Chaml)erlain 
V.  Cuyler,  9  id.  126;  Sickles  v.  Mather, 

30* 


20  id.  72;  Todd  v.  Todd,  1.5  Ala.  743; 
Wilson  V.  Calvert,  18  id.  274  ;  Cogswell 
V.  Dolliver,  2  Mass.  217  ;  Davis  w.  Smith, 
4  Greenl.  337;  Abbott  v.  Keith,  11 
Verm.  529  ;  Hodge  v.  Manley,  25  id. 
210.  But,  see  the  opinions  of  the  learn- 
ed judges  in  the  two  last  cases.  In 
England  this  question  was  set  at  rest 
by  Lord  Tenterderi's  act,  very  soon  after 
Tanner  v.  Smart  was  decided.  See 
Williams  v.  Griffiths,  2  Cr.  M.  &  Eos. 
45 ;  ]\Iills  V.  Fowkes,  7  Scott,  444 ;  Cot- 
tam  V.  Partridge,  4  Scott,  N.  R.  819. 
Care  must  be  taken  not  to  confound  the 
above  cases  with  cases  concerning 
"  merchants'  accounts,"  which  we  shall 
consider  hereafter. 

(t)  Whipple  V.  Stevens,  2  Fost.  219. 
In  this  case  the  Court  say,  "  It  is  well 
settled  that  a  partial  payment  of  a  debt 
amounts  to  an  acknowledgment  of  a  pre- 
sent subsisting  debt,  wiiich  the  party  is 
liable  and  willing  to  pay  ;  from  which,  in 
the  absence  of  any  act  or  declaration  ou 
the  part  of  the  jnirty  making  the  pay- 
ment, inconsistent  with  the  idea  of  a 
liability  and  willingness  to  pay,  a  jury 
may  and  ought  to  infer  a  new  promise.'' 
And  see  cases  cited  infra. 

(n)  Hart  t".  Nash,  2  Cr.  M.  &  Ros. 
337  ;  Hooper  v.  Stephens,  4  Ad.  &  El. 
71  ;  Cottam  v.  Partridge,  4  Scott,  N.  R. 
819. 

[v)  This  was  decided  in  Massachu- 
setts, in  the  case  of  Ilsley  i'.  Jewett,  2 
Met.  168.     But  the  decision  was   put 


554 


THE   LAW   OF    CONTRACTS. 


[PART  II. 


as  part  payment.     It  must,  however,  be  certain,  that  pay- 
ment is  made  only  as  a  part  of  a  larger  debt ;  for  in  the 


upon  the  ground  that  in  that  State  the 
giving  of  such  note  or  hill  is  prima  facie 
evidence  of  payment  and  disciuirge  of 
the  dcl)t  for  which  it  is  given.  A  simi- 
lar decisioij,  however,  lias  been  made  in 
the  recent  case  of  Turney  r.  Dodwell, 
24  Eng.  Law  &  Eq.  92,"  in  England, 
where  no  such  rule  prevails.  That  was 
an  action  by  the  plaintiff,  as  payee  of  a 
promissory  note  against  the  defendant, 
as  maker.  The  defendant  pleaded  the 
statute  of  limitations.  It  appeared  upon 
the  trial  that  the  defendant,  being  in- 
debted to  the  plaintiff,  on  the  5th  of 
May,  184.'5,  gave  to  him  the  note  sued 
on.Vor  108/.  15s.  In  February,  1848,  the 
defendant,  having  been  pressed  to  pay 
part  of  the  debt,  accepted  a  bill  of  ex- 
change, drawn  upon  him  b}-  the  plain- 
tiff, for  30/.,  in  part  payment  of  the  pro- 
missory note.  And  this  was  held  suffi- 
cient to  take  the  note  out  of  the  statute 
of  limitations.  Lord  Camiilicll,  in  de- 
livering the  judgment  of  the  court,  said, 
"  The  only  question  in  this  case  was, 
whether  a  part  payment  by  a  hill  of  ex- 
change, drawn  by  the  plaintiff  and  ac- 
cepted by  the  defendant,  was  suflieient 
to  take  the  case  out  of  the  statute  of 
limitations.  The  circumstances  under 
which  the  acceptance  was  given,  were 
such  as  to  show  that  the  payment  wa.s 
made  as  a  part  payment  of  the  whole 
amount  due,  so  as  to  raise  the  implica- 
tion of  a  fresh  promise,  and  therefore, 
to  be  an  answer  to  the  defence  of  the 
statute  of  limitations,  if  the  part  pay- 
ment by  bill  were  a  part  payment  within 
the  9  Geo.  4,  c.  14.  It  was  said,  on  tiic 
part  of  the  defendant,  and  we  think  cor- 
rectly, tliat  we  ought  to  assume  that  the 
payiiient  in  question  was  not  an  abso- 
lute ]»ayment  in  satisfaction,  so  as  to  be 
a  discliiirge  if  the  bill  were  dishonored. 
If  the  payment  had  been  one  of  absolute 
satisfaction,  no  question  could  have  aris- 
en ;  and  wc  have,  therefore,  to  consider 
whether  the  payment  in  the  usual  man- 
ner inwliich  bills  of  exchange  are  given 
and  taken  in  payment  is  a  payment 
within  the  proviso  of  the  9  Geo.  4,  c.  14, 
by  which  the  effect  of  part  payment  is 
preserved.  The  counsel  for  the  defend- 
ant referred  us  to  the  case  of  Gowan  v. 
Forster,  3  B.  &  Ad.  507,  where  a  doubt 
was  expressed  as  to  whether  the  draw- 
ing of  a  bill  was  a   sulHcicnt  acknow- 


ledgment, within  the  9  Geo.  4,  c.  14,  and 
to  the  case  of  Foster  v.  l^awber,  6  Exch. 
839,  where  the  Court  of  Exchequer 
thought  tiu\t  under  the  circumstances 
no  promise  to  pay  any  balance  could  bo 
implied  in  the  particular  case  ;  but  there 
is  nothing  to  show  that  they  thought  that 
a  part  payment  by  bill,  might  not  be  an 
acknowledgment,  to  take  the  case  out  of 
the  statute  of  limitations,  as  to  the  re- 
mainder. On  the  other  hand,  in  the 
case  of  Irving  v.  Veitch,  3  M.  &  W.  90, 
the  expressions  used  by  the  learned 
barons  lead  ns  to  suppose  that  they 
thought  such  part  payment  by  bill  suffi- 
cient. In  both  Gowan  v.  Forster  and 
Irving  V.  Veitch,  it  was  unnecessary  to 
determine  the  point  now  in  question,  as 
the  courts  most  properly  held  that  the 
acknowledgment,  if  any,  was  at  the 
time  of  delivering  the  bills  in  part  pay- 
ment, and  not  at  their  subsequent  pay- 
ment by  the  parties  on  whom  the  bills  in 
those  cases  were  drawn.  At  the  trial, 
in  the  present  case,  the  Lord  Cliicf  Jus- 
tice of  the  Common  Pleas  held,  tliat  the 
part  ])ayment  Avas  sufficient  to  take  tlic 
case  out  of  the  statute  of  limitations,  and 
we  entirely  concur  in  that  ruling.  Be- 
fore the  statute  9  Geo.  4,  such  a  part  pay- 
ment was  clearly  sufficient  to  take  the 
case  out  of  the  statute  of  limitations,  as 
amounting  to  an  acknowledgment  of 
the  balance  being  due ;  and  tlie  real  ques- 
tion is,  whether  such  payment  by  bill, 
though  not  received,  in  absolute  satisfac- 
tion, is  not  a  payment  within  tlie  proviso 
in  that  statute.  The  effect  of  giving  a  bill 
of  exchange  on  account  of  a  debt  is  laid 
down  by  Maule,  J.,  in  the  recent  case  of 
Belshaw  v.  Bush,  11  C.  B.  191,  approv- 
ing the  doctrine  of  the  Court  of  Exche- 
quer, in  Grifhths  v.  Owen,  13  U.  &  W. 
58.  and  of  Alderson,  B.,  in  James  v.  Wil- 
liams, 13  M.  &  W.  833.  In  all  those 
authorities  such  a  delivery  of  a  bill  is 
laid  down  as  a  conditional  payment. 
We  do  not  see  why  its  immediate  ope- 
ration, as  an  acknowledgment  of  the 
balance  of  the  demand  being  due,  is  at 
all  aifectcd  by  its  operation  as  a  ]iayment 
being  liable  to  be  defeated  at  a  future 
time.  The  statutes  intending  to  make  a 
distinction  between  mere  acknowledg- 
ments, by  word  of  mouth,  and  acknow- 
ledgments proved  by  the  act  of  pay- 
ment, it  surely  cannot  be  material  whe- 


en.  v.] 


STATUTE. OF  LIMITATIONS. 


355 


absence  of  conclusive  testimony,  it  will   not  be  deemed  an 
admission  of  any  more  debt  than  it  pays,  (iv) 


tlicr  such  payment  may  afterwards  be 
avoided  by  the  thinjipaid  turning;  out  to 
be  worthless.  The  intention  and  the  act 
by  which  it  is  evinced  remain  the  same. 
We  tiiink  that  the  word  'payment' 
must  be  taken  to  be  used  by  the  legisla- 
ture in  a  popular  sense,  and  in  a  sense 
large  enouj^h  to  include  the  species  ol' 
payment  in  question  ;  and  we  should 
think  the  acknowledgment  of  liability 
as  to  the  remainder  of  the  debt  not  at 
all  altered  by  the  fact  of  tlie  notes,  by 
■which  it  was  paid,  turning  out  to  be 
forged,  or  of  the  coin  turning  out  to  be 
counterfeit.  In  all  these  cases,  the  force 
of  the  acknowledgment  is  the  same, 
and  the  payment  is,  we  think,  a  sufficient 
payment  wiihin  the  words  of  the  9  Geo. 
4.  In  :\Iaillard  v.  The  Duke  of  Argylc, 
6  M.  &  Gr.  40,  the  Court  of  Common 
Pleas  distinctly  held,  that  the  word 
'  payment.'  as  applicable  to  a  transac- 
tion of  this  kind,  even  when  used  in  a 
plea,  did  not  mean  payment  in  satisfac- 
tion, but  might  be  treated  as  used 
in  its  popular  sense;  and  il/au/e,  J., 
in  that  case,  says  'that  'payment'  is 
not  a  technical  word;  it  has  been  im- 
ported into  law  proceedings  from  the  ex- 
change, and  not  from  law  treatises.' 
When  you  speak  of  paying  by  cash,  that 
means  in  satisfaction,  but  when  by  Iiill, 
that  does  not  import  satisfaction  unless 
the  bill  is  ultimately  taken  up.  In  Bcl- 
shaw  L\  Bush,  the  Lord  Chief  Justice  of 
the  Common  Pleas,  in  speaking  of  a 
transaction  of  this  nature,  says, '  The  real 
answer  is,  that  upon  this  record  you  hav(f 
been  paid  your  debt  ; '  and  in  the  very 
report  now  before  us,  the  learned  Lord 
Chief  Justice  calls  the  present  trans- 
action a  part  payment.  In  mercan- 
tile transactions,  nothing  is  more  usual 
than  to  stipulate  for  a  payment  by  bills, 
where  there  is  no  intention  of  their 
being  taken  in  absolute  satisfaction. 
AVc  are  satisfied  that  a  transaction  of 
this  nature  is  properly  described  by  the 
word  '  payment,'  and  that  it  is  clearly 
within  the  class  of  acknowledgments  in- 
tended to  be  unaffected  by  the  statute; 
and  we  are  satisfied  that  there  is  no  rea- 
son whatever  to  restrict  the  expression 
in  the  statute  to  that  species  of  pay- 
ment which  imports  a  final  satisfaction. 
The  defendant's  case,  which  rested  en- 
tirely on  the  proviso   in   the  9  Geo.  4, 


being  so  restricted,  therefore  fails  in  its 
foundation  ;  and  we  think  that  where  a 
bill  of  exchange  lias  been  so  delivered 
in  jiayment,  on  account  of  the  debt,  as  to 
raise  an  implication  of  a  jiromisc  to  pay 
the  balance,  the  statute  of  limitations  is 
answered,  as  from  the  time  of  sucli  deli- 
very, whatever  afterwards  takes  place  as 
to  the  bill." 

(w)  Tippets  V.  Heane,  1  Cr.  M.  &  Ros. 
2.52.  This  was  an  action  of  assumpsit, 
for  meat,  lodging,  &c.,  furnished  by  the 
])Iaintitf  for  the  defendant's  son.  The 
defetidant  pleaded  the  general  issue.  At 
the  trial,  before  Vaughan,  B.,  the  plain- 
tiff, to  take  the  case  out  of  the  statute, 
proved  by  one  A.  B.  that  he  had  paid 
10^.  to  the  plaintifl^,  by  the  direction  of 
the  defendant,  in  the  year  1829  ;  but  he 
could  not  speak  to  the  account  on  which 
it  was  paid,  or  give  any  evidence  be- 
yond the  mere  fact  of  having  paid  the 
money  by  the  defendant's  direction. 
The  learned  Baron  left  it  to  the  jury  to 
say,  whether  the  10/.  was  paid  on  ac- 
count of  the  debt  in  question ;  and 
observed  to  them  that  no  other  account 
was  proved  to  have  existed  between  the 
parties.  The  jury  having  found  a  ver- 
dict for  the  plaintiff,  the  Court  of  Ex- 
ciiequer  granted  a  new  trial,  on  the 
ground  that  there  was  no  sufficient  evi- 
dence of  part  payment  to  go  to  the  jury. 
And  Parke,  B.,  said,  "  In  order  to  take 
a  case  out  of  the  statute  of  limitations, 
by  a  jiart  payment,  it  must  appear,  in 
the  first  place,  that  the  payment  was 
made  on  account  of  a  debt.  That  was 
left  in  ambiguity  in  the  present  case. 
Secondly,  it  must  appear  that  the  pay- 
ment was  made  on  account  of  the 
debt  for  which  the  action  is  brought. 
Here,  the  evidence  does  not  show  any 
particular  account,  to  which  tlie  payment 
was  applicable.  The  jury  seem  to  have 
considered  it  as  a  payment  of  part  of 
the  debt  in  question ;  and,  perhaps,  as 
there  was  no  other  account  found  to 
liave  been  in  existence  between  the  par- 
ties, they  might  be  warranted  in  so  do- 
ing. But  the  case  must  go  further ;  for 
it  is  necessary,  in  the  third  place,  to 
show  that  tlie  payment  was  made  as 
part  payment  of  a  greater  debt,  Iiecause 
the  prim  Iplc  upon  which  a  pai^  pay- 
ment takes  a  case  out  of  the  statute  is, 
that  it  admits   a  greater  debt  to  be  due 


356  THE  LAW  OF  CONTRACTS.  [PART  II. 

If,  therefore,  a  debtor  owes  his  creditor  several  debts,  some 
of  which  are  barred  by  the  statute  of  limitations,  and  some 
are  not,  and  pays  a  sum  without  appropriating  it  to  any  par- 
ticular debt,  the  creditor  cannot  appropriate  the  sum  so  paid 
to  the  debts  that  are  barred,  and  thereby  take  them  out  of 
the  operation  of  the  statute.  (.^)  And  it  seems,  that  if  there 
are  two  clear  and  undisputed  debts,  both  of  which  are  barred 
by  the  statute,  and  money  is  paid,  but  not  appropriated  to 
either  debt  by  the  debtor,  the  creditor  cannot  appropriate  the 
payment,  and  thereby  take  the  debt  to  which  he  applies  it 
out  of  the  statute,  (t/)  But  if  one  of  the  debts  is  admitted, 
the  jury  may  apply  the  payment  to  that  debt,  rather  than  to 
those  which  are  disputed,  (c)  If,  however,  money  be  paid,  and 
there  is  with  it  an  acknowledgment  of  further  debt,  and  the 
debtor  owes  but  one  debt  to  the  creditor,  the  payment  will 
be  applied  to  that  debt,  without  words  of  appropriation  by 
the  debtor,  (a)  But  if  payment  be  made,  and  with  it  words 
of  denial  or  refusal  as  to  the  debt,  or  the  residue  of  it,  are 
used,  this  does  not  take  the  debt  out  of  the  statute,  (b)  If 
the  debt  consists  of  principal  and  interest,  a  payment  on 
account  of  either  will  take  the  whole  residue  of  both  out  of 
the  statute,  (c)  If  there  be  mutual  accounts,  and  a  balance 
be  struck,  it  has  been  held  that  this  converts  the  items  al- 
lowed into  a  part  payment,  to  take  the  case  out  of  the 
statute,  (d)      And  a  payment,  by  the  debtor/or  the  creditor, 

at  the  time  of  the  part  payment.  Unless  ^rnold   v.    Downing,    11   Barb.    G54  ; 

it  amounts  to  an  admission    that  more  Hodge  ;;.  Manlcj",  25  Verm.  21G. 

is  due.  it  cannot  operate  as  an  admission  (.rj  Mills  v.   Fowkes,  5  Bing.  N.  C. 

of  any  still  existing  debt.     Unless  then,  4.5.5.      But   see    Ayer   v.   Hawkins,    19 

in  the  present  case,  it  could  be  collected  Verm.  26.     And  see  ante,  p.  141,  n.  (/t). 

that  liic  payment  was  in  part  of  a  great-  (_y)  Burn  v.  Boulton,  2  C.  B.  476. — 

er  debt,  the  statute  was  a  bar,  and  there  And  see  State  Bank  v.  Wooddy,  5  Eng. 

being  no  evidence  from  which    a  jury  638  ;  Wood  v.  Wylds,  6  id.  754. 

were  warranted  in  coming  to  such  a  con-  (z)  Burn  v  Boulton,  2  C.  B.  476. 

elusion,  the  present  rule  must  l)e  made  (a)  Evans  v.   Davies,  4  Ad.  and  El. 

absolute."     And  see  to  the  same  effect  840. 

Linscll  V.   Bonsor,  2  Bing.  N.  C.  241  ;  (h)   Wainman   v.  Kynman,   1   Exch. 

Waters  r.  Tompkins,  2  Cr.  M.   &  Bos.  118. 

726  ;  Waugh   v.  Cope,  6  M.  &  W.  824  ;  (r)   Parsonage    Fund    v.  Osgood,    21 

Wainman    v.   Kynman,    1    Kxch.   118;  jVIaiuc,    176;    Bealey   v.   Grcenslade,  2 

Davies  ().  Edwards,  7  Exch.  22;   Smith  Tyrwli.    121  ;   2  Cr.  &  Jcr.  61  ;  Sanford 

f.  Westmoreland,  12  Sm.&  Marsh.  66.3;  r."  Hayes,    I!)    Conn.   591  ;  Bradlield  v. 

McCuUough  r.  Henderson,  24  Mississip-  Tnppcr.  7  E.  L  &  E.  541. 

pi,  9*;  Alston  v.    State   Bank,  4  Eng.  {d)  Thus,  in  A.shby  v.  James,  11  M. 

(Ark.)  455;  State  Bank  v.  Wooddy,  5  &   \V.  542,  it  was  licld  that,   where  A. 

id.  G;{8;   Wood   v.  Wyld.s,    6    id.    754;  has  an  account  against  B.,  some  of  the 


en.  v.] 


STATUTE   OF  LIMITATIONS. 


357 


and  at  his  request,  or  to  one  whom  the  creditor  owes,  has  the 
same  effect  as  a  payment  to  him.  (e) 

Lord  Tenterdcn^ s  act  provides  "  That  nothing  herein  con- 
tained shall  alter,  or  take  away,  or  lessen  the  effect  of  any 
payment  of  any  principal  or  interest  made  by  any  person." 
Hence,  it  leaves  the  fact  of  part  payment  to  operate  as  before; 
but  an  interesting  question  has  arisen,  whether  the  preceding 
clause  of  the  act,  which  requires  that  the  new  promise  or 
acknowledgment  shall  be  in  writing,  requires,  by  construction 
or  implication,  that  an  admission  or  acknowledgment  of  part 
payment  shall  be  proved  or  verified  by  writing.  The  tend- 
ency of  the  English  decisions,  for  some  time,  was  to  require 
this  ;  (/)  but  when  the  question  arose  in  this  country,  it  was 
held  that  the  statute  should  be  construed  as  leaving  the 
matter  of  part  payment  where  it  was  before,  both  as  to  the 
evidence  of  it,  and  as  to  its  effect.  (^)  And  the  same  view 
has  recently  been  -adopted  in  England,  in  the  Exchequer 
Chamber.  (//)     It  has  been  held,  in  England,  that  the  written 


items  of  wliicli  are  more  than  six  years 
old,  and  B.  has  a  cross  account  against 
A.,  and  they  meet  and  go  through  botii 
accounts,  and  a  balance  is  struck  in  A.'s 
favor,  this  amounts  to  an  agreement  to 
set  off  B.'s  claim  against  tlie  earlier 
items  of  A.'s,  out  of  which  arises  a  new 
consideration  for  the  payment  of  tlie 
balance,  and  takes  the  case  out  of  the 
operation  of  the  statute  of  limitations, 
notwithstanding  the  provisions  of  Lord 
Tenterdeii's  act.  And  Lord  Abimjer  said, 
"  I  think  Lord  J'enterdens  act  does  not 
apply  at  all  to  the  fact  of  an  account  stat- 
ed, wliere  there  are  items  on  both  sides." 
[Ilis  Lordsliip  read  tlic  act.]  "  This  is 
not  an  acknowledgment  or  promise  by 
words  only  ;  it  is  a  transaction  between 
the  parties,  wliereby  they  agree  to  tlie 
appropriation  of  items  on  the  one  side, 
item  by  item,  to  the  satisfaction,  pro  tmi- 
to,o{  the  account  on  the  other  side.  The 
act  never  intended  to  prevent  parties 
from  making  such  an  appropriation." 
And  Aldcrson,  B.,  said,  "  The  courts 
have  never  laid  it  down  that  an  actual 
statement  of  a  mutual  account  will  not 
take  tlie  case  out  of  the  statute  of  limi- 
tations. They  have  indeed  determined, 
that  a  mere  parol  statement  of,  and  pro- 
mise to  pay,  an  existing  debt,  will   not 


have  that  effect;  because  to  hold  other- 
wise would  be  to  repeal  the  statute. 
The  truth  is,  that  the  going  through  an 
account,  with  items  on  both  sides,  and 
striking  a  balance,  converts  the  set-off 
into  payments ;  the  going  through  an  ac- 
count where  there  are  items  on  one  side 
only,  as  was  the  case  in  Smith  v.  Forty, 
4  C.  &  P.  126,  does  not  alter  the  situa- 
tion of  the  parties  at  all,  or  constitute 
any  new  consideration.  Here  the  strik- 
ing of  a  balance  between  the  parties  is  ev- 
idence of  an  agreement  that  tbe  items  of 
the  defendant's  account  shall  be  set  off, 
against  tlie  earlier  items  of  the  plain- 
tiff's, leaving  the  case  unaffected  cither 
by  the  statute  of  limitations  or  the  set- 
off." And  see  Worthington  v.  Grims- 
ditch,  7  Q.  B.  479. 

(e)  Worthington  v.  Grimsditch,  7  Q. 
B.  479. 

(/)  Sec  Willis  v.  Ncwham,  3  Y.  & 
Jer.  518;  Waters  v.  Tompkins,  2Cr.M. 
&  Eos.  72.3  ;  Bavlcy  v.  Ashton,  12  Ad. 
&  EI.  493  ;  Maghcc  v.  O'Ncil,  7  M.  & 
W.  531  ;  Eastwood  v.  Saville,  9  id. 
615. 

(g)  See  Williams  i'.  Gridley.  9  Met. 
482;  Sibley  v.  Lumbert,  30  Maine, 
253. 

(A)  Cleave  v.  Jones,   6   Exch.  573. 


358 


THE   LAW   OF   CONTRACTS. 


[part  II. 


aclcnowledgmcnt  which  the  statute  requires,  must  have  the 
actual  signature  of  the  party  himself,  that  of  his  agent  not 


This  was  an  action  on  a  promissory 
note,  for  .£350,  with  interest.  Tlie  de- 
fendant pleaded  the  statntc  of  limiui- 
tions.  At  the  trial,  the  only  evidence 
given  I)y  the  plaintifVto  take  the  case  out 
of  the  statute  was  the  following  unsigned 
entry  in  a  hook  of  the  defendant,  and 
in  her  hand- writing: — "1843.  Cleave's 
interest  on  .£350,  .£17  10s."  JJeld,  in  the 
Exchequer  Chamher,  reversing  the  judg- 
ment of  the  court  below,  that  this  was 
sufficient  evidence  of  payment  of  in- 
terest to  thcplaintiff  to  take  the  case  out 
of  the  statute  oi'  limitations.  And  Lord 
Campbell,  in  delivering  the  judgment  of 
the  court,  said,  "  The  time  has  come 
when  Willis  v.  Newham,  having  been 
brought  before  a  court  of  error,  must  be 
overruled.  The  question  on  this  record 
is,  whether  an  entry  in  an  acconnt  book 
of  the  defendant,  in  her  hand-writing,  by 
whicli  there  is  a  statement  that  she  has 
within  six  years  paid  interest  upon  the 
promissory  note  on  which  the  action  is 
brought,  is  evidence  for  the  jury  to  take 
the  case  out  of  the  statute  of  limitations. 
It  was  held  by  the  learned  Judge  who 
tried  this  case,  in  deference  to  that  deci- 
sion, that  it  was  iiot.  We  are  to  deter- 
mine that  question.  If  Willis  v.  New- 
ham  was  well  decided,  the  learned  Judge 
was  fully  justified  in  saying  that  the 
entry  was  not  evidence  to  go  to  the 
jury  ;  for  this  very  case  is  put  in  Willis 
V.  Newham,  and  it  is  there  asked,  whether 
such  an  acknowledgment  would  be  sutH- 
cient ;  and  the  learned  Baron  who 
delivered  the  judgment  of  the  court, 
answers  '  no ;  because  the  act  says, 
the  defendant  shall  not  be  charged  ex- 
cept by  an  acknowledgment  in  writing, 
signed  by  him.'  Does  the  act  say  so 
or  not  ?  In  our  opinion  the  act  says 
no  such  thing  ;  and  wc  cannot  extend 
the  provisions  of  the  statute  from  a  de- 
sire to  prevent  mischief  in  consimili  casn. 
The  preamble  of  the  9  Geo.  4,  c.  14,  re- 
cites that  '  questions  have  arisen  as 
to  the  proof  and  effect  of  acknowledg- 
ments and  promises  offered  in  evidence 
for  the  i)urpose  of  taking  the  case  out  of 
the  ojjeration  of  the  statute  of  limita- 
tions; '  and  the  statute  then  goes  on  to 
legislate  so  as  to  guard  against  such 
questions  afterwards  arising.  IJefore 
this  statute  passed,  according  to  the  con- 
struction  of  the  21  Jac.  1,  c.  IG,  three 


modes  were  in  practice  to  take  a  case 
out  of  the  operation  of  that  statute:  — 
first,  an  acknowledgment  bj'  words  only  ; 
secondly,  a  promise  by  words  only  ;  and 
thirdly,  part  ])ayment  of  principal  or  in- 
terest. Let  us  tlien  see  whether  tiie  9 
Geo.  4,  e.  14,  docs  not  confine  itself  to 
the  two  first,  leaving  the  third  precisely 
as  it  was  before  that  statute  pa^i-cd.  The 
words  are,  '  tiiat  in  actions  of  debt,  &e., 
no  acknowledgment  or  promise,  by  words 
only,  shall  be  deemed  sufiicient  evidence 
of  a  new  or  continuing  contract,'  to 
take  the  case  out  of  the  statute,  •  unless 
such  acknowledgment  or  promise  shall 
be  made  or  contained  by  or  in  some 
writing,  to  be  signed  by  the  party  charge- 
able thereby.'  Does  that  lessen  tlie 
eflect  of  the  ]iroof  of  payment  of  princi- 
pal or  interest  ?  It  does  not;  but  is  con- 
fined to  acknowledgments  or  promises 
by  words  onl}' ;  and  part  payment  of 
principal  or  interest  is  not  an  acknow- 
ledgment by  words,  but  bj'  conduct.  If 
tiic  statute  had  stopped  there,  it  would 
not  have  met  the  case  of  part  payment; 
but  to  guard  against  all  danger  of  such 
a  construction  being  put  ujion  it,  there 
is  a  proviso  in  express  terms.  '  that 
nothing  herein  contained  shall  alter,  or 
take  away,  or  lessen  the  etl'ect  of  any 
payment  of  principal  or  interest,'  &c. 
Does  not  that  leave  the  effect  and  proof 
of  payment  exactly  as  it  was  before  the 
statute  passed  ?  With  deference  to  the 
Court  of  Exchequer,  I  think  it  does. 
That  construction  of  the  statute  seems 
so  plain,  that  it  cannot  be  strengthened 
by  further  observation.  If  we  say,  as 
we  feel  bound  to  do,  that  Willis  v. 
Newham  was  improperly  decided,  wc 
must  return  to  the  true  construction  of 
the  statute,  and  hold  that  the  evidence 
rejeeted  ought  to  have  been  submitted 
to  the  jury.  It  would  indeed  be  strange 
if  Lord  Tcnterden  had  introduced,  or  the 
legislature  had  passed,  an  act  tu  ex- 
clude evidence  such  as  this,  so  likely  to 
occur  in  the  common  course  of  business, 
and  which  is  not  open  to  fabrication, 
like  a  mere  promise  or  acknowledgment 
by  words,  and,  being  litera  scrijita,  cannot 
deceive.  It  is  said  that  the  efiect  of  our 
decision  will  be  to  let  in  verbal  evidence 
of  i)aymcnt ;  l)Ut  the  legislature  must 
have  thought  that  more  mischief  would 
arise  from  excluding  than  admitting  it ; 


en.   v.]  STATUTE   OF  LIMITATIONS.  359 

being  sufficient,  (i)      We  are   not  aware  that  this  question 
has  arisen  in  this  country. 


SECTION  IV. 

OF   NEW   PROaUSES   AND    PART   PAYMENTS   BY   ONE   OF   SEVERAL 
JOINT   DEBTORS. 

There  has  been  some  conflict,  and  some  change  in  the 
law,  as  to  the  effect  of  the  acknowledgment,  part-payment, 
or  new  promise,  of  one  of  two  or  more  joint  debtors.  And  it 
is  obvious  that  this  must  depend  mainly  upon  the  question 
whether  the  statute  is  viewed  as  one  of  repose,  or  one  of  pre- 
sumption. If  the  latter  is  the  true  construction  of  the  statute, 
as  there  is  no  reason  why  one  of  two  joint  debtors,  as  for  ex- 
ample, one  of  two  who  were  partners  in  a  firm  that  has  been 
dissolved,  should  not  know  perfectly  well  whether  the  debt 
exists  or  not ;  and  as  there  is  a  community  of  interest  be- 
tween him  and  the  other  joint  debtors,  and  it  may  be  sup- 
posed he  would  make  no  acknowledgment  adverse  to  his 
own  interest,  if  it  were  not  true,  it  would  follow  that  the 
acknowledgment  of  one  that  it  does  exist,  ought  to  bind  all. 
But  if  the  statute  gives  its  protection  on  the  ground  that  the 
debt  is  either  paid,  or,  if  unpaid,  shall  not,  and  ought  not, 
to  be  demanded,  it  is  obvious  that  the  acknowledgment  by  one 
debtor  of  the  non-payment  of  the  debt  is  not  enough.  He 
may  bind  himself  by  his  acknowledgment  or  promise,  if  he 
choose  to  do  so,  but  cannot  bind  the  other  party,  unless  he 
has  authority  to  do  so.  And  this  we  take  to  be  the  true  test 
and  measure  of  the  effect  of  an  acknowledgment  by  one  of 
many  joint  debtors.  If  he  that  makes  the  acknowledgment 
had  full  authority  to  bind  the  others  by  an  original  promise, 
growing  out  of  an  entirely  new  transaction,  as  one  partner  in 
an  existing  firm  has  to  bind  the  others,  then  the  acknow- 
ledgment, if  otherwise  sufficient,  may  bind  all,  as  the  new 
promise  of  all;  but  not  where  this  authority  is  wanting. 

otherwise  they  would  have  provided  for    For  tliese  reasons  we  are  of  opinion  tliat 
this  case,  as  well  as  that  of  a  mere  pro-     a  venire  cle  novo  ought  to  he  awarded." 
mise  or  acknowledgment  hy  words  only.         (/)  Hyde  v.  Johnson,  3  Scott,  289. 


360 


THE   LAW   OF   CONTRACTS. 


[part  II. 

We  cannot,  however,  assert  that  the  view  above  presented 
is  fully  sustained  by  authority,  although  we  think  it  not 
only  deducible  from  the  reason  of  the  law,  but  sustained  by 
modern  adjudication,  so  far,  at  least,  as  to  show  that  the 
tendency  of  authority  is  in  this  direction.  (J)     Nevertheless, 


( ;■)  It  was  decided  in  Whitcomb  r. 
Whitinjr,  3  Doug.  C52,  that  an  ac- 
knowlciigment,  new  promise,  or  part 
payment,  by  one  of  several  joint  debtors, 
would  take  the  case  out  of'  the  statute 
of  limitations  as  to  all.  That  was  an 
action  on  a  joint  and  several  promissory 
note  executed  liy  the  defendant  and  three 
others.  Tiie  plaintift'  having  proved  pay- 
ment, by  one  of  the  otlier  three,  of  in- 
terest on  tiie  note  arid  part  of  the  prin- 
cipal, witiiin  six  years,  it  was  held  tiiat 
this  was  suthcient  to  take  the  case  out 
of  the  statute  as  to  the  defendant.  And 
liiOrd  Ma nsjield  said,  "Payment  by  one 
is  payment  for  all,  the  one  acting  virtu- 
ally as  agent  for  the  rest ;  and  in  the 
same  manner,  an  admission  by  one  is 
an  admission  by  all;  and  the  law  raises 
the  promise  to  pay,  when  tiie  debt  is 
admitted  to  be  due."  And  Willcs,  J., 
said,  "  The  defendant  has  had  the  ad- 
vantage of  the  partial  payment,  and 
therefore,  must  be  bound  by  it."  It 
would  seem  that  the  court  ])roeeeded 
partly  upon  the  then  prevalent  view 
that  the  statutory  bar  was  founded 
on  a  presumjjtion  of  payment,  and 
partly  upon  the  ground  that  one  joint 
debtor,  in  making  a  new  promise, 
or  acknowledgment,  or  part  payment, 
acts  in  his  own  behalf,  and  also  as 
agent  for  the  rest.  The  first  ground,  as 
wc  have  already  seen,  no  longer  exists. 
And  as  to  the  second,  it  would  be  dif- 
ficult to  maintain  upon  principle  that 
any  such  agency  exists.  This  decision, 
however,  tliougli  at  times  doubte<l  (see 
lirandran  v.  Wharton,  1  B.  &  Aid.  463 ; 
Atkins  V.  Trcdgold,  2  B.  &  Cr.  23,)  has 
maintained  its  ground  in  England,  and 
is  now  regarded  there  as  sound  law. 
Sec  rerham  v.  Raynal,  2  Bing.  30G; 
Burleigh  v.  Stott,.8  "B.  &  Cr.  3G ;  Pease 
V.  Hirst,  10  id.  122;  Wyatt  v.  Hodson, 
8  Bing.  309  ;  Manderston  v.  Robertson, 
4  M.  &  Kyi.  440;  Channell  v.  Ditch- 
burn,  5  M."&  W.  494.  In  this  last  case 
it  was  held  that  payment  of  interest,  by 
one  of  the  makers  of  a  joint  and  several 
]jromissory  note,  tliougli  made  more 
than  six  years  after  it  become  due,  is 
suflicicnt  to  take  the  case  out  of  the 
statute    of  limitations,   as   against   the 


other  maker.  And  Parke,  B.,  said,  "The 
(juestion  in  this  case  was,  whether 
payment  of  interest  by  one  of  two 
makers  of  a  promissory  note,  made 
after  the  lapse  of  si.x  years  from  the 
time  when  the  note  became  due,  took 
the  case  out  of  the  statute  of  limitations 
with  regard  to  tlie  other  co-maker.  Mr. 
Piatt  relied  upon  the  case  of  Atkins  v. 
Trcdgold,  and  Slater  v.  Lawson,  as 
making  a  distinction,  and  throwing  a 
doubt  upon  the  old  case  of  Whitcomb 
V.  Whiting,  which  decided  that  one  of 
two  joint  makers  of  a  j)romissorv  note 
might,  by  acknowledgment  or  part  pay- 
ment, take  the  case  out  of  the  statute, 
as  against  the  other.  After  those  two 
cases,  undoubtedly  some  degree  of 
doubt  might  fairly  exist  as  to  the  pro- 
priety of  the  decision  in  Whitcomb  v- 
Whiting;  and  it  does  seem  a  strange 
thing  to  sa}-,  that  where  a  person  has 
entered  into  a  joint  and  several  promis- 
sory note  witii  another  person,  he  there- 
by makes  that  other  his  agent,  with  au- 
thority, by  acknowledgment  or  payment 
of  interest,  to  enter  into  a  new  contract 
for  him.  But  since  the  decisions  in  At- 
kins V.  Trcdgold  and  Slater  i\  Law- 
son,  the  Court  of  King's  Bench  have 
twice  decided  that  payment  by  one  of 
two  joint  makers  of  a  promissory  note, 
is  suiiicient  to  take  the  case  out  of  the 
statute,  as  against  the  other.  The  first 
of  these  cases  was  that  of  Burleigh  v. 
Stott,  where  the  defendant  was  sued  as 
the  joint  and  several  maker  of  a  prom- 
issory note ;  and  there  the  court  held 
that  payment  of  interest  by  tiie  other 
joint  maker  was  enough  to  take  the  case 
out  of  the  statute,  as  against  the  defend- 
ant ;  and  that  it  was  to  be  considered  as 
a  ]n-omise  by  both,  so  as  to  make  both 
liable.  And  since  tlic  decision  in  that 
case,  the  Court  of  King's  Bench  have 
come  to  the  same  conclusion,  in  the  case 
of  Manderston  r.  Koberston,  which  was 
argued  on  the  22d  of  May,  1829.  I 
liavc  discovered  my  pai)cr  book  in  that 
case,  wbicli,  it  ap])ears,  was  argued  by 
Mr.  Piatt  iiimself;  and  the  court  de- 
citlcd  there,  that  an  account  stated  by 
one  of  the  makers  of  a  joint  note,  and 
part  payment  of  tlie  account,  took  the 


CH.  v.]  STATUTE    OF   LIMITATIONS.  361 

our  notes  will  show,  that  in  some  cases,  a  part-payment  has 


case  out  of  the  statute  as  to  the  other; 
tlins  conlirmiug  the  autliority  of  Bur- 
leigh r.  Stott.  Then  Mr.  Phitt  relies 
upon  the  distinction  in  this  case,  tlmt 
tiie  payment  was  inatle  after  the  statute 
had  run,  and  wliich  was  pointed  out  by 
Mr.  Justice  Bai/ley  as  one  of  the  grounds 
on  wliich  he  distinguished  the  case  of 
Atkins  r.  Trcdgold,  from  Whitcomb  ;;. 
Whiting;  that  there  tlie  statute  had  at- 
tached, and  that  its  ojjeration  could  not 
he  affected  by  any  act  of  future  pay- 
ment. But  1  find  that  in  Mandcrston 
V.  Robertson,  tlie  note  was  dated  the  9th 
of  July,  1S17,  and  an  account  was  fur- 
nished by  one  of  the  joint  makers,  on 
the  1st  of  June.  1825,  to  the  payee,  tak- 
ing credit  to  himself  for  payments  of 
interest  after  the  si.K  years  had  elapsed, 
but  not  before  ;  and  it  was  held  that  this 
was  sutlicient  to  take  the  case  out  of  the 
statute,  as  against  the  other  maker. 
There  the  ])ayinent  was  after  the  six 
years  had  elapsed,  and  yet  it  was  held 
sufficient.  Tlic  result  is,  that  we  must 
consider  the  case  of  Whitcomb  v.  Whit- 
ing as  good  law.''  Wiiitcomb  v.  Whit- 
ing has  been  followed  also  substantially 
in  Massachusetts.  Hunt  v.  Bridgham , 
2  Pick.  581  ;  White  v.  Hale,  3  kV.  291  ; 
Frye  v.  Barker,  4  id.  382 ;  Sigourney 
V.  i)rury,  14  id-  387.  And  in  Maine. 
Getchell  v.  Heald,  7  Greenl.  26  ;  Green- 
leaf  V.  Quincy,  3  Fairf.  11  ;  Pike  v. 
W.arren,  15  Maine,  390;  Dinsmore  v. 
Dinsmore,  21  id.  433  ;  Shepley  v.  Wa- 
terhouse,  22  id.  497.  But  see  infra, 
n.  iq.)  And  in  Vermont.  Joslyn  v. 
Smith,  13  Verm.  353;  Wheeloc^k  v. 
Dooiittle,  18  id.  440.  And  in  Con- 
necticut. Bound  V.  Lathrop,  4  Conn. 
326  ;  Coit  r.  Tracy,  8  id.  268  ;  Austin  y. 
Bostwick,9id.  496  ;  Clark  v.  Sigourney, 
17  id.  511.  And  pcrliaps  in  some  other 
States.  Sec  the  recent  cases  of  Zent  v. 
Heart.  8  Penn.  St.  337 ;  Goudy  v.  Gil- 
lam,  6  Ricii.  28;  Bowdre  v.  Hampton, 
id.  208;  Tillinghast  v.  Nourse,  14  Geo. 
641.  But  in  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Bell  ;;. 
Morrison,  1  Pet.  351,  tlic  authority  of 
Whitcomb  v.  Whiting  was  repudiated. 
It  is  true  that  th.e  new  promise  in  that 
case  was  not  made  until  the  debt  was 
barred  by  the  statute  ;  but  there  is  much 
reason  to  believe  that  the  decision  of  tlie 
court  would  have  been  the  same,  if  the 
promise  had  been  made  before  tlie  debt 
was  barred.     i)iory,  J.,  in  delivering  the 

VOL   II.  31 


opinion  of  the  court,  after  quoting  the 
language  of  Lord  M<uisJi(U/,  that  "pay- 
ment by  one  is  payment  for  all,  the  one 
acting  virtually  as  agent  for  the  rest; 
and  in  tlie  same  manner  an  admission 
by  one  is  an  admission  by  all ;  and  the 
law  raises  tlic  promise  to  pay,  when  the 
debtis  admitted  to  be  due  ;"  says,  "  This 
is  the  wliole  reasoning  reported  in  the 
case,  and  is  certainly  not  very  satisfac- 
tory. It  assumes  that  one  party  who  has 
authority  to  discharge,  has  necessarily, 
also,  authority  to  charge  the  others; 
that  a  virtual  agency  exists  in  each  joint 
debtor  to  pay  for  the  whole ;  and  tliat  a 
virtual  agency  exists  by  analogy  to 
charge  the  whole.  Now,  this  very  po- 
sition constitutes  the  matter  in  contro- 
versy. It  is  true,  tliat  a  jiayment  by  one 
does  enure  for  the  benefit  of  the  whole; 
hut  this  arises  not  so  mucii  from  any 
virtual  agency  for  tiie  whole,  as  by 
operation  of  law ;  for  the  payment  extin- 
guishes tiie  debt ;  if  such  payment  were 
made  after  a  positive  refusal  or  prohib- 
ition of  the  otiier  joint  debtors,  it  would 
still  operate  as  an  extinguishment  of 
the  debt,  and  the  creditor  could  no 
longer  sue  them.  In  truth,  he  who  pays 
a  joint  debt,  pays  to  discharge  himself; 
and  so  far  from  binding  the  others  con- 
clusively by  his  act,  as  virtually  theirs 
also,  he  cannot  recover  over  against 
them,  in  contribution,  without  such  pay- 
ment has  been  riglufully  made,  and 
ought  to  charge  them.  When  tlie  statute 
has  run  against  a  joint  debt,  tiie  reason- 
able presumption  is  that  it  is  no  longer 
a  subsisting  debt ;  and,  therefore,  there  is 
no  ground  on  which  to  raise  a  virtual 
agency  to  pay  that  wliich  is  not  admitted 
to  exist.  But,  if  this  were  not  so,  still 
there  is  a  great  difference  between  creat- 
ing a  virtual  agency,  wliich  is  for  the 
benefit  of  all,  and  one  which  is  onerous 
and  prejudicial  to  all.  The  one  is  not 
a  natural  or  necessary  consequence  from 
the  other.  A  person  may  well  authorize 
the  payment  of  a  debt  for  which  he  is 
now  liable  ;  and  yet  refuse  to  authorize 
a  charge,  where  there  at  present  exists 
no  legal  liability  to  pay.  Yet,  if  the 
princijile  of  Lord  Man?.Jicld  be  correct, 
tiie  acknowledgment  of  one  joint  debtor 
will  l)ind  all  tlie  rest,  even  tiiougli  they 
should  have  utterly  denied  the  debt  at 
tlie  time  when  such  acknowledgment 
was  made."  And  the  Court  of  Ajtpeals 
in  New-York,  in  two  recent  cases,  have 


oG2  THE   LAW    OF    COXTRACTS.  [PART  II. 

barred   the  statute,  and  revived  a  remedy  against  others  who 


established  tlic  law  in  that  State,  in  entire 
accordance  with  tlic  view  stated  in  the 
text.  The  first  of  these  cases  is  Van 
Keuren  v.  Parnielee,  2  Comst.  523.  It 
was  there  lield  that,  after  the  dissolution 
ofa  partnership,  an  acknowledgment  and 
promise  to  pay,  made  by  one  of  the 
partners,  will  not  revive  a  debt  against 
the  firm  which  is  barred  by  the  statute 
of  limitations.  The  decision,  therefore, 
went  no  further  than  that  in  Bell  v. 
Morrison,  and  consequently  did  not 
cover  the  case  of  a  new  promise  or  ac- 
knowledgment made  before  the  debt  is 
barred,  nor  determine  Avhether  tlierc  is 
any  distinction  in  this  respect  between 
a  new  promise  or  acknowledgment  and 
a  part  payment.  After  this  case  was 
decided,  there  was  a  difference  of  opinion 
in  the  Supreme  Court,  upon  the  two 
questions  last  noticed.  Sec  Bogert  v. 
Vermilva.  10  Barb.  32 ;  Dunham  v. 
Dodge,"  id.  566  ;  Reid  v.  McNaughton, 
15  id.  16S.  But  they  were  both  set  at 
rest  by  the  Court  of  Appeals  in  Shoe- 
maker r.  Benedict,  1  Kernan,  176.  It 
was  there  held  that  payments  made  by 
one  of  the  joint  and  several  makers  of 
a  promissory  note,  before  an  action  upon 
it  is  barred  by  the  statute  of  limitations, 
and  within  six  years  before  suit  brought, 
do  not  affect  the  defence  of  the  statute 
as  to  the  other.  And  A/lcn,  J.,  after 
examining  the  case  of  Van  Keuren  v. 
Parmelce,  said,  '•  Do  tlie  points  in  which 
this  case  differs  from  that  decided  in  the 
Court  of  Appeals,  take  it  without  the 
principles  decided,  and  without  the  sta- 
tute of  limitations'?  I  think  not.  First: 
One  point  of  ditfcYence  is,  that  in  this 
case  partial  payments,  and  not  a  promise 
or  naked  acknowledgment  of  the  exist- 
ence of  tlie  debt,  are  relied  upon  to  take 
the  case  out  of  the  statute.  But  partial 
payments  arc  only  available  as  facts 
from  which  an  admission  of  the  exist- 
ence of  the  entire  debt  and  a  present 
liability  to  jiay  may  be  inferred.  As  a 
fact  by  itself,  u  payment  only  proves 
the  existence  of  the  debt,  to  the  amount 
paid,  but  froini  that  fact  courts  and 
juries  have  inferred  a  promise  to  pay 
the  residue.  In  some  cases  it  is  said  to 
be  an  unequivocal  admission  of  the 
existence  of  the  debt;  and  in  the  case 
of  the  payment  of  money  as  interest,  it 
would  l)e  such  an  admission  in  respect 
to  the  i)rincipal  sum.  Again,  it  is  said 
to  be  a  more  reliable  circumstance  than 


a  naked  promise,  and  the  reason  as- 
signed is,  that  it  is  a  deliberative  act, 
less  liable  to  misconstruction  and  mis- 
statement than  a  verbal  acknowledg- 
ment. So  be  it.  It  is  nevertliclcss  only 
reliable  as  evidence  ofa  promise,  or  from 
which  a  promise  may  be  im])lied.  Any 
otlier  evidence  which  establishes  snch 
promise  would  be  equally  eflicacious, 
and  most  assuredly  a  deliberate  written 
acknowledgment  of  the  existence  of  a 
debt  and  promise  to  pay,  is  of  as  high 
a  character  as  evidence  of  a  partial  pay- 
ment to  defeat  the  statute  of  limitations. 
In  either  case  the  question  is  as  to  the 
weight  to  be  given  to  evidence,  and  if  a 
new  promise  is  satisfactorily  proved  in 
either  method,  the  debt  is  renewed.  The 
question  still  recurs,  who  is  autliorizcd 
to  make  snch  promise  ?  If  one  joint 
debtor  could  bind  his  co-debtors  to  a 
new  contract,  by  implication,  as  by  a 
payment  of  a  part  of  a  debt  for  which 
they  were  jointly  liable,  he  could  do  it 
directly,  by  an  express  contract.  The 
law  will  hardly  be  cliargcd  with  the  in- 
consistency of  autliorizing  that  to  be 
done  indirectly  which  cannot  be  done 
directly.  If  one  dcljtor  could  bind  his 
co-debtors  b}'  an  unconditional  promise, 
he  could  by  a  conditional  promise,  and  a 
man  might  find  himself  a  party  to  a 
contract  to  the  condition  of  which  he 
would  be  a  stranger.  Second  :  Another 
fact  relied  upon  to  distinguish  this  case 
from  Van  Keuren  v.  Parmclee  is,  that 
the  payments  were  made  before  the 
statute  of  limitations  had  attached  to 
the  debt,  and  while  the  liability  of  all 
confessedly  existed.  In  some  cases  in 
Massachussetts,  this,  as  well  as  the  fact 
that  the  revival  or  continuance  of  the 
debt  was  effected  by  payment  from  which 
a  promise  was  imfilied  rather  than  by 
express  promises,  were  commented  upon 
])y  the  court  as  important  ])oints.  I'ut 
I  do  not  understand  that  the  cases  were 
decided  ujion  the  ground  that  these  cir- 
cumstances really  introduced  a  new  ele- 
ment or  brought  the  cases  within  a  dif- 
ferent principle.  The  decisions,  in  truth, 
were  based  upon  tlic  authority  of  the 
decisions  of  the  English  courts,  and  prior 
decisions  in  the  courts  of  that  State. 
That  a  ]iron)ise  made  wliile  the  statute 
of  limitations  is  running,  is  to  be  con- 
strued and  acted  upon  in  tlic  same  man- 
ner as  if  made  after  the  statute  has  at- 
tached, is  decided,  in  Dean  r.  Ilcwit,  5 


CH.  v.] 


STATUTE    OF   LIMITATIONS. 


36? 


were  only  sureties,  (k)  And  this  even  where  the  parties  were 
bound  severally,  as  well  as  jointly,  to  pay  the  debt,  and  the 
action  is  brought  only  against  him  who  did  not  make  the 
payment.  (/)  And  so  where  there  were  several  securities  for 
a  debt,  on  some  of  which  the  debtor  was  liable  alone,  and  on 
others  jointly,  a  payment  by  him  "  on  account,"  without 
specification  or  appropriation,  was  held  to  revive  them  all.  (m) 
And  such  payment,  by  a  joint  debtor,  has  been  held  to  revive 
the  debt  against  the  others,  although  the  debtor  made  it  in 
fraud  and  in  expectation  of  his  bankruptcy,  (n) 


"Wend.  257,  and  Tompkins  r.  Brown,  1 
Denio,  247.  If  the  promise  is  conditional, 
the  condition  must  he  performed  hefore 
tlie  liahility  attaclies  so  as  to  authorize 
an  action.  It  does  not,  as  a  recognition 
of  the  existence  of  the  debt,  revive  it 
absolutely  from  the  time  of  the  con- 
ditional promise.  And  in  principle,  I 
see  not  why  a  promise  made  before  the 
statute  has  attaclied  to  a  debt,  should 
be  obligator}^  when  made  by  one  of 
several  joint  debtors,  when  it  would  not 
be  obligatory  if  made  after  the  action 
was  barred.  The  statute  operates  upon 
the  remedy.  The  debt  always  exists. 
An  action  brought  after  the  lapse  of  six 
years  upon  a  simple  contract,  must  be 
upon  the  new  promise,  whether  the 
promise  was  before  or  after  the  lapse  of 
six  years,  express  or  implied,  absolute 
or  conditional.  The  same  authority  is 
required  to  make  the  promise  before  as 
after  the  six  years  have  elapsed.  Can  it 
be  said  that  one  of  several  debtors  can, 
on  the  last  day  of  the  sixth  year,  by  a 
p.ayment,  small  or  large,  or  by  a  new 
promise,  either  express  or  implied,  so 
affect  the  rights  of  his  co-debtors  as  to 
continue  their  liability  for  another  space 
of  six  years,  without  their  knowledge 
or  assent,  or  any  authority  from  them, 
save  that  to  be  implied  from  the  fact 
that  they  are  at  the  time  jointly  liable 
upon  the  same  contract,  and  yet  that,  on 
the  very  next  day,  without  any  act  of 
the  parties,  such  authority  ceases  to  ex- 
ist ?  If  so,  I  am  unable  to  discover  upon 
what  principle.  And  may  tlie  debt  be 
thus  revived,  from  six  years  to  six  years, 
through  all  time,  or  if  not,  what  limit  is 
put  to  the  authority  ?  If  any  agency  is 
created,  it  continues  until  revoked.  The 
decision  of  Van  Keuren  v.  Parmelee,  is 
upon  the  ground  that  no  agency  ever 
existed,  not  that  an  agcncv  once  exist- 


ing has  been  revoked."  The  law  is  the 
same  in  New  Hampshire.  Exeter  Bank 
V.  Sullivan,  6  N.  II.  124  ;  Kclley  v.  San- 
born, 9  id.  46  ;  Whipple  v.  Stevens,  2 
Fost.  219.  And  in  Tennessee.  Belote  v. 
Wvnne,  7  Ycrg.  534 ;  Muser.  Bonelson. 
2  Humph.  166. 

(/.)  Burleigh  v.  Stott,  8  B.  6c  Cr.  36 ; 
"Wyatt  V.  Hodson,  8  Bing.  309:  Sigour- 
ney  v.  Drury,  14  Pick.  387. 

(/)  Whitcomb  v.  Whiting,  2  Doug. 
652;  Burleigh  v.  Stott,  8  B.  &  Cr.  36; 
Channell  v.  Uitchburn,  5  U.  &  W. 
494. 

(m)  Dowling  v.  Ford,  11  M.  &  W. 
329.  In  this  case,  one  Nodin  having 
applied  to  the  plaintiff' for  a  loan  of  300/. 
on  mortgage,  the  plaintiff',  doubting 
the  sufficiency  of  the  security,  refused  to 
advance  it  without  having,  in  addition,  a 
joint  and  several  promissory  note  for  50l., 
from  Nodin  and  the  defendant,  payable 
on  demand.  The  note  and  mortgage 
were  accordingly  given,  the  latter  con- 
taining a  covenant  by  Nodin  to  pay  the 
sum  of  300/.  and  interest  at  5  per  cent. 
Several  half-yearly  payments  of  71.  IDs. 
each,  for  interest,  having  been  made  by 
Nodin  : — Held,  in  an  action  against  the 
defendant  upon  the  note,  that  such  pay- 
ments by  Nodin  kept  all  the  .securities 
alive,  and  prevented  the  operation  of  the 
statute  of  limitations  as  to  the  note. 

{>})  Goddard  r.  Ingram,  3  Q.  B.  839. 
In  this  case,  the  debt  was  originally  con- 
tracted with  J.,  W.,  and  S. ;  and  S.  more 
than  six  years  afterwards,  and  within  six 
years  of  the  action  being  brought,  made 
a  payment  in  respect  of  it  to  the  plain- 
tiff. S.  became  bankrupt  shortly  after  ; 
and  the  jury  found  that  he  made  the 
])ayment  in  fraud  of  J.  and  W.,  and  in 
expectation  of  immediate  bankruptcy. 
Held,  nevertheless,  that  the  jiayment 
barred  the  operation  of  the  statute. 


364  THE   LAW   OP   CONTRACTS.  [PART  II. 

But  in  some  instances,  where  the  acknowledgment  of  one 
joint  debtor  is  held  to  be  admissible  evidence  of  the  promise 
of  the  others,  the  question  is  still  reserved,  whether  it  be 
sufficient  evidence.  As  where  one  made  an  acknowledg- 
ment of  a  barred  debt,  due  from  him  and  another,  under  cir- 
cumstances which  showed  that  the  acknowledgment  was 
made  for  the  sake  of  a  personal  benefit  to  himself,  the  evi- 
dence was  admitted,  but  the  jury  were  told  that  it  was  in- 
sufficient, (p)  As  to  partners  after  dissolution,  there  is  in  this 
country  much  conflict ;  but,  as  we  have  already  stated,  we 
think  the  prevailing  authorities  are  against  the  power  of  one, 
to  bind  others  who  were  partners  with  him,  by  his  acknow- 
ledgment of  a  barred  partnership  debt,  {p) 

This  whole  question,  so  far  as  regards  the  effect  of  a  new 
promise  or  acknowledgment,  by  one  of  several  joint  debtors, 
has  been  set  at  rest  in  England  by  Lord  Tenterden's  Act, 
which  declares,  in  substance,  that  no  joint  contractor  shall 
lose  the  benefit  of  the  statute,  so  as  to  be  chargeable  by 
reason  only  of  any  written  acknowledgment  or  promise,  made 
and  signed  by  any  co-contractor,  (ry)  But  in  order  to  pre- 
serve unimpaired  the  remedy  against  the  joint  debtor  who 
makes  the  promise  or  acknowledgment,  the  act  provides  that 
in  actions  to  be  commenced  against  two  or  more  joint  con- 
tractors, if  it  shall  appear  that  the  plaintiff,  though  barred 
by  the  statute  as  to  one  or  more  of  such  joint  contractors,  is 
entitled  to  recover  against  another,  or  others  of  them,  by  vir- 
tue of  a  new  acknowledgment  or  promise,  "judgment  may 
be  given,  and  costs  allowed,  for   the  plaintiff,  as   to    such 


(o)  Coit  V.  Tracy,  8    Conn.  2G8.     In  cumstanccs,  was  not  sufficient  to  remove 

this  case,  tlicrc  was  a  joint  indebtedness,  the  bar  of  the  statute  of  limitations,  set 

by  the  defendant  and   one  Coit,  to   the  up  by  the  defendant, 

plaintiff,  frrowinj^  out  of  an  af;e„cy  eon-  ^^  j^^jj  ^_  j^j^rrison,  1  Pet.  351  ;  Van 

ducted  by  the  defendant  and  Co.t  joint-  Xeurenr.     Parmelcco    Com.st.    523. 

ly  •  an<l  more  than   twenty   years  after  ^^^  ^^^  ^^,^^^.  ^^^^^  ^.^^^             ,^   ^. 

sucli  af;eney  was   ended,  C-oit  made  an  '     '       '■  ' 

acknowledgment  of  the  debt,  and  then,  (7)  There  is  a  similar  statutory  pro- 

at  his  own  expense,  and  with  a  view  to  vision   in    Massacliusctts.      Sec    Mass. 

obtain  an  advantajje  to  himself,  by  are-  llev.  Sts.  c.  120,  sWS;  Peiree  v.  Tobey, 

covery  against  the   defendant,  procured  5   Met.     1G8;    Balcom    r.    Kiehards,    6 

a  suit  to  be  brought,  in   the   name   of  Cusli.  3G0.  And  in   Maine:  Sec  Maine 

the  plaintiff,  against  the  defendant  and  Kev.  Sts.  c.  140,   ^  24;  Quimby  l\  Put- 

himsclf  ;  and  it  was  held,  that  the    ac-  nam,  28  Maine,  419.     And  perhaps   in 

knowlcdymcnt  of  Coit,  under  such  cir-  some  other  States. 


CH.  v.]  STATUTE    OF    LIMITATIONS.  3G5 

defendant  or  defendants  against  whom  he  shall  recover,  and 
for  the  other  defendant  or  defendants  against  the  plaintiff." 
Formerly,  the  acknowledgment  might  be  made  to  any  one, 
as  it  had  the  full  force  of  an  admission  of  a  fact,  (r)  Thus, 
if  A.  said  to  B.,  "  I  cannot  pay  you,  for  I  owe  C,  and  must 
pay  him  first,"  this,  in  an  action  brought  by  C.  against  A., 
to  which  the  statute  was  pleaded,  supported  a  replication 
that  the  cause  of  action  accrued  within  six  years,  (s)  But 
such  doctrine  would  not  be  generally  maintained  now  ;  (/) 
and  it  has  been  supposed  that  Lord  Tenlerden^s  Act,  by  im- 
plication, required  that  the  acknowledgment  should  be  to 
the  creditor  himself.  (?/)  But  this  can  not  be  the  legitimate 
effect  of  the  statute,  if,  as  has  been  said,  and  would  seem  to 
be  deducible  from  the  words  of  the  statute,  its  purpose  is 
merely  to  substitute  "  the  certain  evidence  of  a  writing, 
signed  by  the  party  chargeable,  for  the  insecure  and  preca- 
rious testimony  to  be  derived  from  the  memory  of  wit- 
nesses." (v)  For  then,  a  writing  so  signed,  should  have  the 
whole  force  of  an  acknowledgment  proved  by  witnesses  be- 
fore the  statute.  Perhaps  it  might  be  admitted,  from  the' 
peculiar  nature  of  negotiable  paper,  that  an  acknowledgment 
by  the  maker  to  the  payee,  would  remove  the  bar  of  the 
statute,  in  favor  of  a  subsequent  party  to  the  note.  This, 
however,  is  not  quite  certain  on  the  authorities,  {w)  There 
seems  to  be  no  reason  why  a  part-payment  or  acknowledg- 
ment to  an  agent,  should  not  relieve  a  debt  from  the  statute 

(r)  Mountstephen   v.   Brooke,  3  B.  &  Wilson,   10   Watts,    261  ;    Morgan    v. 

Aid.  141  ;  Peters  v.  Brown,  4  Esp.  46  ;  Walton,   4  Penn.    St.   32-3;    Christ}-  v. 

Hallidav  v.  Ward,  3  Campb.  32;   Clark  Flemintrton,  10  id.   129;  Kyle  v.  Wells, 

V.  Honjiam,   2    B.    &    Cr.    149;  Soul-  17  id.  286;    Gillingham  ?;.   Gillingham, 

den  V.  Van  Rensselaer,  9  Wend.  293;  id.  302.     But  see  the  reeent  New  York 

Whitney  v.  Bigelow,  4  Pick.  110;  St.  cases,  cited  in  the  preceding  note,  which 

John  V.  Garrow,  4  Port,  223  ;  Oliver  v.  show  that  the  old  rule  is  still  adhered  to 

Gray,  1  H.  &  Gill,  204  ;  Watkins  v.  Stc-  in  that  State. 

vens,  4  Barb.  168;  Carshorc  v.  Huvek,         (u)  Greenfell  v.  Girdlestonc,  2  Y.  & 

6  id.  583  ;  Bloodgood  v.  Bruen,  4  Sandf.  Col.  662. 
427.  (r)  Per  Tindal,   C.  J.,  in  Haydon  v. 

(s)  Peters  v.  Brown,  4  Esp.  46.  Williams,  7  Bing.  166. 

(t)  It  is  now  clearly  established  law,         (w)  See  Gale  v.  Capern,  1  Ad.  &  El. 

in  Pennsylvania,  that  a  new  ])romise  or  102  ;  Cripps  v.  Davis,  12  M.  &  W.  l.'iO  ; 

acknowledgment,  to  take  a  case  out  of  Bird  r.  Adams,    7    Geo.    503  ;  Dean  v. 

the  statute  of  limitations,  must  be  made  Ilewit,  5  AVond.  257  ;  Little  v.  Blunt,  9 

to  the  creditor  or  his   authorized  agent.  Pick.  488  ;  Ilowe  v.  Thompson,  2  Fairf. 

See  Farmers   &   Mechanics'   Bank   v.  152. 

31* 


366  THE   LAW   OF   CONTRACTS.  [rART  II. 

as  to  his  principal;  (x)  or  that  one  to  an  administrator 
should  not  defeat  the  statute  as  to  his  claim  in  behalf  of 
the  intestate's  estate.  (?/) 


SECTION  V. 

OF   ACCOUNTS   BETWEEN   MERCHANTS. 

The  statute  of  James  applies  to  "  all  actions  of  account,  and 
upon  the  case,  other  than  such  accounts  as  concern  the  trade 
of  merchandise,  between  merchant  and  merchant,  their  factors 
or  servants."  And  similar  language,  or  a  similar  provision, 
is  frequently  found  in  the  statute  of  limitations  of  this 
country. 

When  an  action  is  brought  to  which  the  statute  of  limita- 
tions is  pleaded  in  bar,  and  the  question  arises  whether  this 
exception  can  be  replied,  so  as  to  remove  the  bar,  it  is  ne- 
cessary to  inquire,  1st,  whether  the  transaction  upon  which 
the  action  is  founded,  constitutes  an  "account"  within  the 
meaning  of  the  exception  ;  and,  2d,  whether  the  account  is  one 
which  concerns  "  the  trade  of  merchandise,  between  merchant 
and  merchant,  their  factors  or  servants,"  within  the  meaning 
of  the  exception.  And  unless  both  of  these  questions  can  be 
answered  in  the  affirmative,  the  statute  will  apply.  In  regard 
to  the  first  of  these  questions,  it  is  settled  in  England,  by 
recent  cases,  that  a  transaction  will  not  constitute  an  "  ac- 
count "  within  the  meaning  of  this  exception,  unless  it  is  such 
that  it  would  sustain  an  action  of  account,  or  an  action  on 
the  case  for  not  accounting,  (c)     This  doctrine  appears  to 

(.r)  Mcgginson  v.  Harper,  2  Cr.  &  M.  tion  arose  in  a  course  of  dcalinjj;,  carried 

322;  Hill  v.  Kendall,  25  Verm.  528.  on  between  the  plaiiitifi'  and  defendant, 

(y)  Baxter  v.  Penniman,  8  Mass.  133  ;  as  merchant  and  merchant,  and  con- 
Jones  V.  Moore,  5  Binn.  573.  sisted  of  items  in  an  ojjcn  and  unset- 

(z)  Infills  V.  Ilaigh,  8  M.  &  W.  7G9.  tied  account  between  them,  as  such  mcr- 

This  was  an  action   of  indebitatus  as-  chants,  and  which  said  account  contain- 

sumpsit,  in  which  the  ])laintifr  declared  cd  various  items  in  favor  of  the  defend- 

for  work  and  labor,  money  lent,  money  ant,  and  the  balance  due  on  which  he, 

paid,  and   for  interest.     The  defendant  the  plaintilV,  soujrht  to  recover   in   the 

pleaded  the  statute  of  limitations.     The  present  action.     The  question  was,  whc- 

plaintilFrcidied  that  he  and  the  defend-  ther  this  replication  was  a  sulHcient  an- 

ant  were  both  merchants,  and  that  the  swcr  to  the  plea.     And  the  court  held 

cause  of  action  stated  in  the  dcclara-  that  it  was  not.     Parke,  B.,  in  deliver- 


en.  v.] 


STATUTE    OF    LIMITATIONS. 


367 


rest,  iijoon  very  satisfactory  grounds,  and  we  think  it  will  be 
adopted   by  the  courts  in  this  country.     As  to  the  second 


inp  the  judjimcnt  of  the  court,  said, 
"  The  pica  of  the  statute  of  limitations 
is  a  complete  bar,  unless  the  plaintiff, 
by  his  replication,  can  take  the  case  out 
of  its  operation.  He  attempts  to  do  so 
by  brinijing  it  within  the  exception  in 
the  statute,  as  to  merchants'  accounts. 
But  we  think  that  exception  docs  not 
apply  to  an  action  of  indebitatus  as- 
sumpsit, for  the  several  items  of  which 
the  account  is  composed,  or  for  the  ge- 
neral balance,  but  only  to  a  proper  ac- 
tion of  account,  or  perhaps  also  an  ac- 
tion on  the  case  for  not  accounting.  Al- 
though there  is  no  reported  case  express- 
ly governing  the  present,  yet  there  are 
many  coming  very  near  it,  and  in  which 
the  dicta  of  very  eminent  judges  fully 
warrant  the  view  we  take  of  the  sul)ject." 
[His  Lordship  then  proceeded  to  exam- 
ine the  cases.]  "  In  none  of  tiiese  did  the 
facts  necessarily  call  for  a  decision,  whe- 
ther the  exception  did  or  did  not  at  all 
apply  to  actions  of  assumpsit.  Still  the 
dicta  of  the  judges  in  those  cases  are  en- 
titled to  great  weight,  unopposed  as 
they  are  by  any  conflicting  authority 
whatever.  But  independently  of  au- 
thority, we  are  of  opinion  that  the  rea- 
sonable construction  of  the  statute  re- 
quires such  a  restriction  as  the  dicta  of 
the  judges,  in  the  cases  we  have  referred 
to,  clearly  sanction.  The  words  are, 
'all  actions  of  account,  and  upon  the 
case,  other  than  such  accounts  as  concern 
the  trade  of  merchandise,  between  mer- 
chant and  merchant,  their  factors  or 
servants.'  Now,  as  was  said  hy  Scroggs, 
J.,  in  the  case  of  Farrington  v.  Lee,  1 
Mod.  269,  2  id.  311,  if  the  legislature 
had  meant  to  include  in  the  exception 
other  actions  than  actions  of  account, 
the  language  would  probably  have  been 
'  other  than  such  actions  as  concern  the 
trade  of  merchandise,'  and  not  '  other 
than  such  accounts.'  Indeed,  it  is  diffi- 
cult to  say  that  an  action  of  indebitatus 
assumpsit,  for  goods  sold  and  delivered, 
or  for  money  had  and  received,  can,  un- 
der any  circumstances,  be  described  as 
an  action  having  any  reference  to  ac- 
counts ;  it  Would  have  been  still  more 
difficult  to  say  so  at  the  time  wlien 
the  statute  of  limitations  was  pass- 
ed. Where  a  merchant  plaintiff  brings 
an  action  for  goods  sold  and  deliv- 
ered, money  paid,  or  any  of  the  other 


items  which  may  constitute  his  demand 
against  the  merchant  defendant,  with 
whom  he  has  had  mutual  dealings,  he  is 
rather  repudiating  than  enforcing  ac- 
counts. Indeed,  by  the  comparatively 
modern  statutes  of  set-off,  the  defendant 
may  now  have  the  benefit  of  his  counter 
demands;  but  that  was  not  the  case  at 
the  date  of  the  statute  of  limitations ; 
and  we  must  construe  the  statute  now, 
as  it  ought  to  have  been  construed  im- 
mediately after  it  became  law.  At  that 
time  there  was  no  proceeding  at  law  by 
which  mutual  demands  could  be  set 
against  each  other,  except  by  action  of 
account,  and  consequently  there  was  no 
other  action  in  any  manner  connected 
with  accounts,  properly  so  called.  It  does 
not  at  all  vary  the  case,  that  the  plaintiff 
only  seeks  to  recover  what  he  calls  the 
balance  due  on  the  account.  If  that  bal- 
ance had  been  stated  and  agreed  to,  then 
all  the  authorities  show  that  it  is  alto- 
gether out  of  the  exception.  If  it  has 
not  been  stated  and  agreed  to,  then 
it  is  only  what  the  plaintift"  chooses  to 
call  a  balance,  the  accuracy  of  which 
the  defendant  had,  at  the  time  of  pass- 
ing the  statute  of  limitations,  no  means 
of  disputing,  in  an  action  of  assumpsit. 
Our  view  of  the  case  is  much  assisted  by 
considering  that  the  exception  clearly 
would  not  apply  to  an  action  of  debt, 
brought  for  the  very  same  demand ;  and 
it  is  difficult  to  believe  tinit  the  legisla- 
ture could  have  intended  to  pi'cserve  the 
right  in  one  form  of  action,  but  to  bar  it 
in  another."  About  a  year  afterwards, 
the  case  of  Cotfam  v.  Partridge,  4  Scott, 
N.  R.  819,  was  decided  in  the  Common 
Pleas.  That  was  an  action  of  assump- 
sit, for  goods  sold  and  delivered.  It  ap- 
peared that  the  plaintiffs  were  iron- 
founders,  and  wholesale  and  retail  manu- 
facturing smiths,  and  agricultural  im- 
plement makers.  The  defendant  car- 
ried on  the  business  of  a  retail  iron- 
monger. The  action  was  brought  to 
recover  the  balance  of  an  account,  for 
goods  sold  and  delivered  by  the  plain- 
tiffs to  the  defendant,  between  the  month 
of  June,  18.30,  and  June,  1834.  Held, 
that  the  case  was  not  within  the  excep- 
tion in  the  statute  of  limitations,  as  to 
merchants'  accounts.  And  Tindal,  C. 
J.,  said,  "  In  tlie  late  case  of  Inglis  v. 
liaigh,  8  M.  &  W.    769,   the  Court  of 


368 


THE  LAW   OF   CONTRACTS. 


[rART  II. 


question,  there  seems  to  be  no  test  by  wliich  it  can  be  deter- 
mined, other  than  that  furnished  by  the  language  of  the 
statute.  In  applying  this  language,  however,  to  the  facts  of 
particular  cases,  much  aid  may  be  derived  from  the  cases 
already  decided,  (a)     An    opinion   seems  formerly  to  have 


Exchequer  seem  to  have  decided  that 
the  exception,  as  to  merchants'  accounts, 
in  the  statute  of  limitations,  apjilies  only 
to  an  action  of  account,  or  perhaps  also 
to  an  action  on  the  case  for  7iot  accounting, 
but  not  to  an  action  of  indebitatus  as- 
sumpsit. Without  going  quite  so  far 
as  tliat  (though  I  hy  no  means  intend 
to  impeach  the  propriety  of  that  deci- 
sion), I  am  of  opinion  that  the  excep- 
tion will  not  apply,  except  where  an  ac- 
tion of  account  is  maintainable;  and 
the  ground  upon  which  I  rest  the  de- 
termination of  the  present  case,  is,  that 
the  circumstances  are  not  such  for 
which  an  action  of  account  would 
lie."  The  earlier  cases  will  be  found 
fully  collected,  in  a  learned  note  to 
Webber  v.  Tivill,  2  Saund.  121,  by 
Sergeant  Williams.  And  see  Spring  v. 
Gray,  5  Mai5on,  505,  G  Pet.  151.  In 
this  case,  Marshall,  C.  J.,  after  quoting 
the  language  of  the  statute,  says,  "  From 
the  association  of  actions  on  the  case,  a 
remedy  given  by  the  law  for  almost 
every  claim  for  money,  and  for  the 
redress  of  every  breach  of  contract  not 
under  seal,  with  actions  of  account, 
which  lie  only  in  a  few  special  cases ;  it 
may  reasonably  be  conceived  that  the 
legislature  had  in  contemplation  to  ex- 
cept those  actions  only  for  which  ac- 
count would  lie.  Be  this  as  it  may,  the 
words  certainly  require  that  the  action 
should  be  founded  on  an  account."  See 
also  Toland  v.  Sprague,  12  Pet.  300; 
Didier  v.  Davison.  2  Barb.  Ch.  477. 

(a)  Where  the  joint  owners  of  planta- 
tions in  Java,  which  they  worked  in  co- 
partnership, kept  an  account  with  cer- 
tain merchants  and  agents  at  Bombaj/,  to 
whom  they  became  largely  indebted  in 
respect  of  moneys  advanced  and  paid 
for  their  use ;  it  was  held,  th.^t  the 
accotmt  was  not  a  mercantile  account, 
within  the  meaning  of  the  exception  in 
the  statute  of  limitations.  Forbes  v. 
Skelton,  8  Sim.  .'3.'i5.  And  in  Spring  ?•. 
Gray,  5  JIason,  505,  G  Pet.  151,  it  was 
held,  that  a  special  contract  between 
ship-owners  and  a  shipper  of  goods,  to 
receive  half  profits  in  lieu  of  J'rei'jht  on 


the  shipment  for  a  foreign  voyage,  is  not 
a  case  of  merchants'  accounts,  within 
the  exception  in  the  statute  of  limita- 
tions. And  Marshall,  C.  J.,  said,  "  The 
account  must  be  one  '  which  concerns 
the  trade  of  merchandise.'  The  case 
protected  by  the  exception  is  not  evei-y 
transaction  between  merchant  and  mer- 
chant, not  ever}-  account  which  might 
exist  between  them  ;  but  it  must  concern 
the  trade  of  merchandise.  It  is  not  an 
excm])tion  from  tlie  act,  attached  to  the 
merchant  merely  as  a  personal  privilege, 
but  an  exemption  which  is  conferred  on 
the  business,  as  well  as  on  the  persons 
between  whom  that  business  is  carried 
on.  The  account  must  concern  the  trade 
of  merchandise  ;  and  this  trade  must 
be,  not  an  ordinary  traffic  between  a 
merchant  and  any  ordinary  customers, 
but  between  merchant  and  merchant." 
In  Watson  r.  Lyle,  4  Leigh,  2.'56,  ^vhere 
the  plaintifl"  replied  to  a  plea  of  the  sta- 
tute of  limitations,  that  the  cause  of  ac- 
tion consisted  of  accounts,  which  con- 
cerned the  trade  of  merchandise,  between 
merchant  and  merchant,  and  no  evi- 
dence was  adduced  to  prove  that  either 
party  was  a  merchant  during  the  time 
of  the  dealings  between  them,  nor  any 
evidence  of  the  character  of  those  deal- 
ings but  that  furnished  by  the  account 
of  the  i)lainliff,  in  which  account  the 
debits  to  the  alleged  debtor  consisted  of 
two  items  lor  casii  paid  him  on  account 
of  bills  of  exchange,  one  item  for  goods 
sold  him,  and  the  other  items  for  cash 
advanced  to  or  for  him,  and  there  was 
a  single  credit  for  the  proceeds  of  a  bill 
of  exchange  bought  of  him  ;  it  was  held, 
that  the  replication  was  not  supjiorted 
liy  the  evidence,  and  the  demand  there- 
fore was  barred  by  the  statute.  Again, 
in  Farmers  &  Mechanics' Bank  i\  Plant- 
ers' Bank,  10  Gill.  &  Johns.  422,  it  was 
held,  that  the  exception  did  not  apply 
to  transactions  between  banking  insti- 
tutions. And  sec  farther,  Dutton  v. 
Hutchinson,  1  Jur.  722  ;  Coster  v.  Mur- 
ray, 5  Johns.  Ch.  522,  20  Johns.  576  ; 
Landsdale  ?•.  Brashear,  3  Monr.  330 
Patterson  i'.  Brown,  G  id.  10;  Smith  v. 


cii.  v.] 


STATUTE    OF    LIMITATIONS. 


369 


been  entertained  that  none  were  merchants,  within  the  mean- 
ing of  this  exception,  save  those  who  traded  beyond  sea.  (b) 
But  that  clearly  would  not  be  held  now.  So,  also,  an 
opinion  has  prevailed,  to  some  extent,  that  the  exception 
does  not  extend  to  accounts  between  merchants,  as  part- 
ners ;  (c)  but  we  doubt  whether  there  is  good  reason  for  such 
a  restriction,  (d)  Whether  common  retail  tradesmen  come 
within  the  exception,  as  being  merchants,  is  more  uncertain,  (e) 
It  has  been  much  questioned  whether  this  exception  re- 
quired that  even  where  the  account  was  between  merchants, 
and  in  relation  to  merchandise,  some  item  of  it  must  be  with- 
in six  years.  (/)  It  would  seem  that  this  construction  adds 
to  the  statute.  It  requires,  for  admission  within  the  excep- 
tion, a  new,  distinct,  and  important  element,  which  the 
statute  certainly  does  not  express,  and  perhaps  does  not  indi- 
cate. We  consider  this  question  as  now  settled  in  England, 
in  the  negative ;  and  believe  that  it  will  be  so  held  in  this 
country,  (g-) 


Dawson,  10  B.  Monr.  112  ;  Price  v.  Up- 
shaw,  2  Humph.  142 ;  Slocumb  v. 
Holmes,  1  How.  (Miss.)  139;  Fox  v. 
Fisk,  6  id.  328;  Marseilles  v.  Kenton, 
17  Penn.  St.  238  ;  McCuUoch  v.  Judd, 
20  Ala.  703  ;  Blair  v.  Drew,  6  N.  H. 
235  ;  Sturt  v.  Mellish,  2  Atk.  612  ;  Cod- 
man  v.  Rogers,  10  Pick.  118;  Coalter 
V.  Coalter,  1  Rob.  (Virg.)  79. 

(b)  Thiis,  in  Sherman  v.  Withers,  1 
Ch.  Cas.  152,  which  was  a  bill  in  equity 
for  an  account  of  fourteen  j'cars'  stand- 
ing, it  appeared  that  the  plaintiff  was  an 
inland  merchant,  and  the  defendant  his 
factor.  The  defendant  pleaded  the  stat- 
ute of  limitations.  And  "upon  debate  of 
the  plea,  the  Lord  Keeper  conceived  the 
exception  in  the  statute,  as  to  merchants' 
accounts,  did  not  extend  to  this  case,  but 
oulv  to  merchants  ti-ading  beyond  sea." 

(c)  Bridges  v.  Mitchell,  Barb.  217; 
Lansdale  r.  Brashear,  3  Monr.  330 ; 
Patterson  v.  Brown,  6  id.  10  ;  Coalter  v. 
Coalter,  1  Rob.  (Virg.)  79. 

(d)  See  Ogden  v.  Astor,  4  Sandf  327. 

(e)  In  Farrington  v.  Lee,  1  Mod.  268, 
Atkyns,  .L,  said,  "  I  think  the  makers  of 
this  statute  had  a  greater  regard  to  the 
persons  of  merchants,  than  the  causes 
of  action  between  them.  And  the  reason 
was,  because  they  arc  often  out  of  the 
realm,  and  cannot  always  prosecute  their 


actions  in  due  time.  I  think,  also,  that 
no  other  sort  of  tradesmen  but  merchants 
arc  within  the  benefit  of  this  exception  ; 
and  that  it  does  not  extend  to  shop-keep- 
ers, they  not  being  within  the  same  mis- 
chief." And  see  Cottara  v.  Partridge,  4 
Scott,  N.  R.  819,  where  this  question 
was  raised,  but  not  decided. 

(/)  For  cases  holding  the  affirmative 
of  this  question,  sec  Welford  v.  Liddel, 
2  Ves.  400 ;  Martin  v.  Heathcotc,  2 
Eden,  169;  Barber  v.  Barber,  18  Ves. 
286;  Foster  v.  Hodgson,  19  id.  179; 
Ault  V.  Goodrich,  4  Russ.  430  ;  Coster 
V.  Murrav,  5  Johns.  Ch.  522,  20  Johns. 
576;  Didier  v.  Davison,  2  Barb.  Ch. 
477  ;  Van  Rhyn  v.  Vincent,  1  McCord's 
Ch.  310. 

(f/)  That  this  question  is  now  settled 
in  the  negative  in  England,  see  Catling 
V.  Skoulding,  6  T.  R.'  189  ;  Robinson  v. 
Alexander,  8  Bligh,  352 ;  Inglis  v.  Haigh, 
8  M.  &.  W.  769"^  See,  however,  Tatam 
V.  Williams,  3  Hare,  347.  And  such  also 
is  the  weight  of  authority  in  this  country. 
Sec  Mandcvillc  v.  Wilson,  5  Cranch,  15  ; 
Spring  V.  Gray,  6  Pet.  151;  Bass  v.  Bass, 
6  Pick.  362  ;*  Watson  v.  Lvle,  4  Leigh, 
236  ;  Coalter  v.  Coalter,  1  Rob.  (Virg.) 
79  ;  Lansdale  v.  Brashear,  3  Monr.  330  ; 
Patterson  v.  Brown,  6  id.  10;  Dyott  v. 


370  THE   LAW   OF   CONTRACTS.  [PAET    II. 

SECTION  VI. 

WHEX   THE   PERIOD   OF   LIMITATION  BEGINS   TO   RUN. 

• 
The  next  question  we  propose  to  consider,  is,  from  what 

point  of  time  the  six  years  are  to  be  counted.  The  general 
answer  is,  from  the  period  when  the  creditor  could  have  com- 
menced his  action  ;  because  it  is  then  only  that  the  reason 
of  the  limitation  begins  to  operate,  whether  we  say  with  the 
theory  that  the  statute  is  one  of  presumption,  that  so  long 
a  delay  makes  it  probable  that  the  debt  is  paid,  or  suppose 
the  statute  to  be  one  of  repose,  and  say  that  after  so  long  a 
neglect,  the  creditor  ought  to  lose  his  action.  Thus,  if  a 
credit  is  given,  the  six  years  begin  when  the  credit  ex- 
pires ;  (h)  and  if  the  money  be  payable  on  the  happening  of 
a  certain  event,  the  six  years  begin  from  the  happening  of 
the  event,  as  on  a  marriage ;  (t)  or  if  a  bill  be  payable  at 
sight,  the  six  years  begin  on  presentment  and  demand,  (j) 
And  this  credit  may  be  inferred,  or  lengthened,  by  infer- 
ence, (k)  As  if  goods  are  sold  on  six  months  credit,  and 
then  a  bill  to  be  given,  payable  at  three  months,  the  six  years 
begin  after  nine  months ;  and  if  the  bill  may  be  at  two  or 
four  months,  at  the  purchaser's  option,  this,  it  seems,  would 
be  construed  as  a  credit  for  ten  months.  (/)  It  may,  how- 
ever, be  doubted  whether  the  true  construction  of  such  a 
contract  should  not  be  a  credit  for  six  months  ;  then  a  bill 
for  two  or  four  ;  and  if  the  bill  is  given,  the  statute  will  begin 
to  run  when  the  bill  is  due  and  not  before ;  but  if  the  bill  is 

Letcher,  6  J.  J.  JIarsh.  541  ;  Guichard  operate  only  froni  the  time   when   the 

V.  Superveile,  11  Texas,  522  ;  Ogden  u.  money  was  to  be  repaid,  namely,  when 

Astor.  4  Sandf.  329.  the  hill  hccanie  due.   And  see  AVIicalley 

(/()  Thus,   in    Witter.sheim   v.   Lady  ti.  Williams,  1  M.  &  W.  533  ;   Irving  r. 

Carlisle,  1  li.Bl.  G31,  it  was  held,  tha't  Vcitch,  3  id.  90;    Fryer  v.  Koe,  22  E. 

where  a  bill  of  exchange  is  drawn  pay-  L.  &  lv[.  440. 

able  at  a  certain  future  period,  for  the         (/)  Shutford  c  Borough,  Godb.  437;' 

amount  of  a  sum  of  money  lent  by  tlie  Fenton  i-.  Emblcrs,  1  Wm.  Bl.  353. 
payee  to  the  drawer,  at  the  Time  of  dVaw-         (/)  Wolfe  v.  Whiteman,  4  Ilarring. 

ing  tlic  bill,  the  payee  may  recover  the  240;  Holmes  r.  Ivcrrison,  2  Taunt.  323. 
money  in  an  action  for  money  lent,  ^j.^  ^.^.^  ^j,.^,,,^ ,.  ^^^^  , .,  j>  ^^^^^  267. 
althougli  SIX  vcars  have  elapsed  since       ,,,  ,,  ,  ,„.        ,  ^  i»    ,,   »  i 

the  time  when  the  loan  was  advanced  ;       i')  l^^'ps  ^•-  Wintcrbottom,  2  B.  i.  Ad. 

the  Ktatutc  of  limitations  beginning  to  '*'^'- 


en. 'v.]  STATUTE    OF    LIMITATIONS.  871 

not  given,  this  is  a  breach  of  the  contract  so  far,  and  the  credit 
ends  with  the  six  months,  and  the  statute  then  begins  to 
run.  (m) 

Where  there  are  third  parties  in  the  transaction,  the  same 
rule  prevails.  As  if  one  sells  property  belonging  to  himself 
and  another,  and  this  other  sues  him  for  his  share,  the  action 
is  barred  by  the  statute,  only  if  six  years  have  run  from  the 
time  when  the  payment  was  made  by  the  buyer,  (n)  And  if 
the  seller  takes  a  promissory  note  for  the  goods,  the  six  years 
do  not  run  for  him  from  the  sale,  nor  yet  from  the  maturity 
of  the  note  ;  but  only  from  the  actual  payment,  because  only 
then  could  the  other  owner  demand  his  share,  (o)  So  if  a 
surety  pays  for  his  principal,  the  statute  begins  to  run  from 
his  first  payment  for  his  principal,  as  to  that  payment;  (p) 
but  as  to  his  claim  on  a  co-surety,  for  contribution,  it  does 
not  begin  when  he  begins  to  pay,  but  only  when  his  pay- 
ments first  amount  to  more  than  his  share,  (q)-  So  in  a  con- 
tract of  indemnity  ;  the  six  years  begin  only  with  the  actual 
damnification,  (r)  As  if  one  lends  a  note,  on  a  promise  of 
indemnity,  the  statute  begins  to  run  only  from  the  time  when 
he  has  to  pay  the  note  he  lends,  (s)  If  a  demand  be  neces- 
sary to  sustain  an  action,  only  after  it  is  made  does  the 
statute  begin,  (t)  But  a  note  payable  "  on  demand "  is 
due  always,  and  the  statute  begins  as  soon  as  the  note  is 
made,  (ii)  So  it  is  with  a  receipt  for  money  borrowed, 
whereby  the  borrower  agrees  to  pay  "  whenever  called  upon 
to  do  so."  (v) 

(?«)  Ter  Parke,  J.,  in  Helps  v.  Winter-  1  Taunt.  572  ;  Clark  v.  Moody,  17  Mass. 

bottom,  supra.  145;    Coffin  v.  Coffin,  7   Grcenl.  298; 

(h)  Miller  v.  Miller,  7  Pick.  133.  Little  v.  Blunt,  9  Pick.  488  ;  Stafford  v. 

(o)  Id.  Richardson,   15  Wend.   302  ;    Lillie  i\ 

(p)  Davies  v.  Humphreys,  GM.  &W.  Hoyt,  5  Hill,  395;  Hickok  v.  Hickok, 

153  ;  Ponder  v.  Carter,  12  Iredell,  242  ;  13  Barb.  632  ;  Lyle  v.  Murray,  4  Sandf. 

Gillespie  v.  Crcswell,  12  Gill  &  Jolins.  590;  Mitchell  v.  McLcmore,  9  Texas, 

36;  Bullock  r.  Campbell,  9  Gill,  182.  151  ;  JMcDonnell   v.   Branch  Bank,  20 

((/)  Davies  r.  Humphreys,  s»;)7-a.  Ala.   313;    Taylor  v.    Spears,   3   Eng. 

(?)  Huntlev  r.  Sanderson.  1  Cr.  &M.  (Ark.)  429;   Denton  v.  Embury,  5  id. 

467  ;  Collinge  r.  Heywood,  9  Ad.  &  El.  228. 

633:  Ponder  r.  Carter,  12  Iredell,  242;  ,  t -..i       -n^     *  o -n-  i    aoo     i^r 

o:    „        n      11x1-    A  T?;^i,    inn.  pji  (u)  Little r.  Blunt,  9  Pick.  488  ;  Wen- 

buns  vj  Goudelock,  6  Kicli.   100;  Lril-         ^    '    ,„,     ,,   ,       ,'  .,       ,„',,r      , 

lespic  V.  Crcswell,  12  Gill  &  Johns.  36.     "];i»  \-.\'^  ?°''^^'V^' n>        q  ^5  '. 

(s)  Reynolds  v.  Doyle,   2  Scott,  N.   '2b/;  Hill  r.  Henry  1.  Ohio,  9  ;  Norton 
-p    ,-      -^  I'.  Ellam,  2  M.  6c  W.  461. 

(t)  For  the  cases  in  which  a  demand        (r)  See  Waters  v.  The  Earl  of  Thanct, 
is  necessary,  see  Topliam  v.  Braddick,     2  Q.  B.  757. 


372 


THE   LAW   OF   CONTRACTS. 


[part   II. 


The  statute  begins  to  run  whenever  the  creditor  or  plaintiff 
could  bring  his  action,  and  not  when  he  knew  he  could  ;  as 
if  one  promises  to  pay  when  able,  as  soon  as  he  is  able  the 
statute  run?,  although  the  creditor  did  not  know  it.  [w)  And 
if  the  action  rests  on  a  breach  of  contract,  it  accrues  as  soon 
as  the  contract  is  broken,  although  no  injury  result  from  the 
breach  until  afterwards,  (.r)  As  if  one  delivers  goods  which 
arc  not  what  lie  undertakes  to  sell,  and  the  purchaser  re-sells 
under  his  mistake,  and  is  obliged  to  pay  damages,  he  has  a 
claim  against  the  first  seller,  but  must  bring  his  action  to 
enforce  it  within  six  years  from  the  first  sale,  (y)  So  if  one 
is  guilty  of  gross  negligence,  whereby  injury  occurs,  six 
years,  running  from  the  time  of  his  neglect,  will  bar  the 
action,  although  the  injury  has  occurred  within  the  six.  {z) 

The  holder  of  a  foreign  bill  acquires  a  right  of  action,  as 
against  the  drawer,  immediately  on  non-acceptance,  protest, 
and  notice;  aftd  the  statute  then  begins  to  run  against  him; 
and,  therefore,  if  he  afterwards  pays  the  bill  when  due,  he 
has  not  six  years  from  that  payment  in  which  he  may  bring 
his  action,  (a)  It  has  been  said,  obiler,  in  New  York,  that  a 
second  endorser  who  sues  a  prior  endorser  for  money  paid 
on  a  note,  but  who  has  not  paid  the  note  and  brought  his 
action  upon  it,  cannot  maintain  his  action,  if  the  statute  has 
run  in  favor  of  the  defendant,  and  against  the  holder  of  the 
note,  (b) 


(ir)  Wiitcrs  V.  Tlie  Earl  of  Thanet,  2 
Q.  B.  757.  And  see  Battley  v.  Faulkner, 
3  B.  &  Aid.  288;  Short  v.  McCarthy, 
id.  62G;  Brown  r.  Howard,  2  Br.  & 
Bing.  73  ;  (jrangcr  v.  George,  5  B.  &  Cr. 
149;  Argall  )■.  Bryant,  1  Sandf.  98; 
Troup  r.  Smith,  20"  Johns.  33  ;  Howell 
V.  Young,  T)  B.  &  Cr.  259 ;  Wileox  r. 
Plummer,  4  Pet.  172;  Kerns  r.  Sehoon- 
makcr,  4  Ohio,  331  ;  Denton  v.  Embury, 
5  Eng.  (Ark.)  228;  The  Governor  v. 
Gordon,  15  Ala.  72. 

(:r)  Argall  v.  Bryant,  1  Sandf.  98 ; 
Smith  V.  Fox,  C  Hare,  38C.  And  sec 
cases  cited  in  |)rcceding  note. 

(y)  Thus,  where  A.,  under  a  contract 
to  deliver  spring-wheat,  liad  delivered  to 
B.  winter-wheat,  and  13.,  liaving  .again 
sold  the  same  as  sprin;:-wheat,  had  in 
consequeiH-c  l)eeti  compelled,  after  a  suit 
in  ^Scotland,  which  lasted  many  years, 


to  pay  damages  to  the  vendee,  and  after- 
wards brought  an  action  of  assumpsit 
against  A.  for  his  breacli  of  contract, 
alleging  as  special  damage,  the  damages 
so  recovered,  it  was  hdd,  that  although 
such  special  damage  had  occurred  within 
six  years  before  the  commencement  of 
the  action  by  B.  against  A.,  yet  that  the 
breach  of  the  contract  having  oecuiTcd 
more  than  six  years  before  that  ])criod, 
A.  might  properly  jilead  actio  iion  accrevit 
infra  sex  annos.  Battley  v.  Faulkner, 
3  B.  &  Aid.  289. 

(z)  Sinclair  v.  The  Bank  of  So.  Car, 
2  Strobh.  344.  And  sec  cases  cited 
supra,  n.  ("). 

{a)  Whitehead  v.  Walker,  9  M.  &  W. 
50G. 

(//)  Wright  r.  Butler,  6  Cow.  284. 
And  see  Barker  v.  Cassidv,  IG  Barb. 
177. 


CH.    v.]  STATUTE   OF  LIMITATIONS.  373 

If  money  be  payable  by  instalments,  the  statute  begins  to 
run  as  to  each  instalment  from  the  time  when  it  becomes 
due;  but  if  there  be  an  agreement  that  upon  default  as  to 
any  one,  all  then  unpaid  shall  become  payable,  the  statute  be- 
gins to  run  as  to  all,  upon  any  default,  (c) 

If  the  demand  arise  from  the  imperfect  execution  of  a 
contract  to  do  certain  work,  in  a  certain  way,  and  within  a 
certain  time,  it  is  said  that  the  six  years  begin  to  run  from 
the  time  when  the  work  was  to  have  been  completed,  and 
not  from  the  time  when  the  plaintiff  had  received  actual 
damage  from  the  imperfect  execution  of  the  work,  (d) 

It  would  seem,  both  from  English  and  American  authority, 
that  the  statute  does  not  begin  to  run  against  the  claim  of 
an  attorney,  for  professional  services,  until  he  no  longer  acts 
in  that  matter  as  attorney  ;  (e)  but  he  may  terminate  his  pro- 
fessional relation  at  his  own  pleasure,  (if  he  thereby  does 
•no  wrong  to  his  client)  and  demand  payment  of  his  bill ;  and 
the  statute  then  begins  to  run.  (/)  So  it  would  undoubtedly 
be,  if  the  services  were  in  any  way  brought  to  an  end,  although 
no  demand  were  made ;  because  (except  so  far  as  the  Eng- 
lish rule,  requiring  a  delivery  of  the  signed  bill  one  month 
before  suit,  might  prevent  it)  he  could  bring  an  action  for  his 
services  at  once. 


SECTION  VII. 
OF   THE   STATUTE  EXCEPTIONS    AND   DISABILITIES. 

The  statute  of  James  provides,  that  if  the  plaintiff,  at  the 
time  when  the  cause  of  action  accrues,  is  within  the  age  of 
twenty-one  years, /erne  covert,  no7i  compos  mentis,  imprisoned, 
or  beyond  the  seas,  he  may  bring  his  action  at  any  time  with- 
in six  years  after  the  disability  ceases  or  is  removed. 

(c)  Hemp  I'.  Garland,  4  Q.  B.  519.  Eq.  587 ;  Rothery  r.  Munnings,  1  B.  & 

(d)  Kaukin  v.  Woodworth,  3  Tcnn.  Ad.  15;  Phillips  v.  Broadley,  9  Q.  B. 
48.  744  ;  Foster  v.  Jack,  4  Watts,  334 ;  Jones 

(e)  Hanris  v.   Osbourn,  2  Cr.  &  M.  r.  Lewis,  11  Texas,  359. 

629;  Nicholls  v.  Wilson,  11  M.  &  W.        (/)  Vansandau  v.  Browne,  9  Bing. 
106;  Whitehead  v.  Lord,   11  E.  L.  &     402. 
VOL.   n.  32 


374  THE    LAW    OF   CONTRACTS.  [PART   II. 

If,  therefore,  either  of  these  disabilities  exists,  when  the 
cause  of  action  arises,  then,  so  long  as  it  exists,  the  statute 
does  not  run  ;  but  as  soon  as  the  disability  is  removed,  the 
statute  begins  to  run. 

In  general,  if  the  statute  begins  to  run,  its  operation  can- 
not afterwards  be  arrested,  (g)  Thus,  if  the  disability  should 
not  exist  when  the  cause  of  action  arose,  but  should  begin 
one  month  afterwards,  and  remain,  as  if  the  creditor  should 
go  abroad  and  not  return,  the  statute  runs  in  the  same  way 
as  if  the  disability  never  existed.  So  if  it  exists  when  the 
cause  of  action  begins,  and  is  afterwards  removed,  although 
temporarily,  the  statute  begins  to  run  as  soon  as  the  dis- 
ability is  removed,  and  then  continues.  And  it  has  .been 
held,  not  only  that  if  the  creditor  returns  to  his  home  for 
a  short  time,  and  then  goes  abroad  again,  and  remains  there, 
the  statute  begins  to  operate  ;  but  if  there  be  joint  credi- 
tors, who  were  abroad  when  the  cause  of  action  accrued, 
and  one  of  them  returned  home,  the  six  years  begin  as  to 
all  from  such  return.  (//) 

If  several  disabilities  co-exist  when  the  right  of  action 
accrues,  the  statute  does  not  begin  to  run  until  all  are  re- 
moved, (i)  But  if  there  exists  but  one  disability  at  the  time 
when  the  cause  of  action  accrues,  other  disabilities,  arising 
afterwards,  cannot  be  tacked  to  the  first,  so  as  to  extend  the 
time  of  limitation,  {j) 

But  it  is  obvious  that  an  action  cannot  be  brought  if  the 
defendant  cannot  be  reached,  any  more  than  if  the  plaintiff 
cannot  act.  And,  therefore,  the  statute  of  the  fourth  of  Anne, 
eh.  16,  s.  19,  provides  that  if  any  person  against  whom  there 
shall  be  a  cause  of  action,  shall,  at  the  time  when  such  cause 

(7)  Smith  r.  Hill,  1  Wils.  134  ;  Gray  (j)  Demarcst  v.  Wynkoop,  3  Johns. 

V.  Mendcz,   Strange,  556;  llutt' i-.  Bull,  Ch.  129;  Jackson  v.  Hol)inson,  5  Cow. 

7  II.  &  Johns.  14;  Young  v.  Mackall,  4  74;    Butler  v.  Howe,   13  Maine,  397; 

Maryland,  3G2  ;  Coventry  v.  Atlicrton,  •  Dugan  v.  Gittings,  3  Gill,  138;  Scott  v. 

9  Ohio,  34;  Tcndcrgrast  v.   Foley,   8  Haddock,  II  Geo.  258. 

Geo.  1.  (  /)  l^emarcst  r.  Wynkoop.  3  Johns. 

Ch.l29;  Jackson  v.  Wheat,  18  Johns. 

(/*)  Perry  v.  Jackson,  4  T.  R.  516;  40;  Eager  v.  The  Coiniiionwealth,  4 
Marsteller  v.  M'Clcan,  7  Crunch,  156;  Mass.  182;  Dcasc  v.  Jones,  23  Missis- 
Henry  V.  Means,  2  Hill,  (S-  C.)  328;  sippi,  133;  i)ocd.  Caldwell  v.  Thorp,  8 
lliggs  r.  Dooley,  7  B.  Monr.  236  ;  Wells  Ala.  253 ;  Mercer  r.  Selden,  1  How.  37  ; 
f.R:igland,l  Swan,  501.  But  sec,  con/ra,  Brsiilstreet  r.  Clarke,  12  Wend.  602; 
Gourdine  r.  Graham,  1  Brevard,   329.  Scott  v.  Haddock,  1 1  Geo.  258. 


CH.   v.] 


STATUTE   OF  LIMITATIONS. 


375 


ofaction  accrues,  be  beyond  the  seas,  then  the  action  may 
be  brought  at  any  time  within  six  years  after  his  return. 
This  statute  also  has  been  substantially  re-enacted  here.  In 
England  it  seems  to  have  been  held  that  if  the  debtor  returns 
but  for  a  few  days,  and  his  return  is  wholly  unknown  to  the 
creditor,  the  statute  begins  to  run  from  the  date  of  his  re- 
turn, (/t)  But  it  has  been  held  here,  that  if  the  debtor  come 
back  within  the  jurisdiction  and  remain  some  weeks,  but 
hide  himself,  so  that  the  creditor  has  not  actually  an  oppor- 
tunity of  suing  him,  this  return  does  not  satisfy  the  purpose 
of  the  statute,  and  the  six  years  do  not  begin.  (/)  It  has 
further  been  held  here,  that  in  order  to  put  the  statute  in 
operation,  the  defendant  is  bound  to  show,  either  that  the 
plaintiff  knew  of  his  return,  so  as  to  have  had  an  opportunity 
to  arrest  him,  or  that  his  return  was  so  public  as  to  amount 
to  constructive  notice  or  knowledge,  and  to  raise  the  pre- 
sumption that  if  the  plaintiff  had  used  ordinary  diligence,  the 
defendant  might  have  been  arrested,  {m) 


(k)  See  Gregory  v.  Hurrill,  5  B.  &  Cr. 
341 ;  HoU  I'.  Hadley,  2  Ad.  &  El.  758. 

(/)  White  V.  Bailey,  3  Mass.  271.  So 
the  Supreme  Court  of  New  York  in 
Fowler  v.  Hunt,  10  Johns.  464,  declared 
that  "  The  coming  from  abroad  must  not 
be  clandestine,  and  with  an  intent  to  de- 
fraud the  creditor  by  setting  the  statute 
in  operation  and  then  departing.  It  must 
be  so  public,  and  under  such  circum- 
stances, as  to  give  the  creditor  an  oppor- 
tunity, by  the  use  of  ordinary  diligence 
and  due  means,  of  arresting  the  debtor." 
So  in  Hysinger  v.  Baltzells,  3  Gill  &. 
Johns.  158,  where  the  cause  of  action 
accrued  in  October,  1822,  when  the  de- 
fendant was  a  resident  of  another  State, 
and  it  appeared  that  the  defendant  was 
in  Baltimore,  where  the  plaintiff  resided, 
in  April,  1823,  "  purchased  other  goods 
from  the  plaintiff,  and  remained  there 
for  two  days,"  it  was  held,  that  the  stat- 
ute did  not  begin  to  run,  because  it  did 
not  appear  at  what  time  during  those 
two  days,  the  defendant  made  his  pur- 
chase ;  nor  whether  the  plaintiff  had  an 
opportunity  to  sue  out  a  writ  against 
him  with  effect.  And  Martin,  J.,  said, 
"  It  might  be  true  the  defendant  was  in 
Baltimore  for  two  days,  and  that  he  pur- 
chased goods  from  the  plaintiffs,  yet  if 
their  knowledge  of  his  being  there  arose 


solely  from  the  purchase  made,  and  that 
purchase  was  made  immediatehj  before 
the  defendant  left  the  city,  that  would 
not  afford  them  an  opportunity  to  sue 
out  a  writ  with  effect.  If  it  had  been 
stated,  that  the  defendant  was  in  Bal- 
timore for  two  days,  and  that  the  plain- 
tiffs knew  he  was  there  for  that  space  of 
time,  laches  might  be  imputed  to  them ; 
but  this  is  not  stated,  and  the  court  could 
not  infer  it."  And  see  further.  State  Bank 
V.  Seawell,  18  Ala.  616;  Byrne  v. 
Crowninshield,  1  Pick.  263 ;  Howell  v. 
Burnett,  11  Geo.  303;  Alexander  v. 
Burnett,  5  Kich.  189;  Dorr  v.  Swart- 
wout,  1  Blatch.  179;  Kandall  v.  Wil- 
kins,  4  Denio,  577. 

(m)  Little  v.  Blunt,  10  Pick.  359.  In 
Mazozon  v.  Foot,  1  Aikens,  282,  Skin- 
ner, C.  J.,  said,  "  It  cannot  be  supposed, 
nor  does  the  defendant  insist,  that  every 
coming  or  return  into  the  State,  would 
set  the  statute  in  operation.  He  admits 
it  must  be  such,  as  that  by  due  diligence 
the  creditor  might  cause  an  arrest.  If 
the  debtor  should  remove  or  return  to 
the  State  publicly,  and  with  a  view  to 
dwell  and  permanently  reside  within  its 
jurisdiction,  although  in  an  extreme  part 
from  the  place  of  his  former  residence, 
or  that  of  the  creditor,  this  would  un- 
doubtedly bring  the  case,  by  a  correct 


376 


THE   LAW   OP   CONTRACTS. 


[part  II. 


A  question  has  been  made  whether  the  exception  in  ifie 
statute,  in  reference  to  absentees,  extends  to  foreigners,  or 
those  -who  have  resided  altogether  out  of  the  State  or  country, 
as  well  as  to  citizens  who  may  be  absent,  for  a  time.  And 
it  has  been  contended  that  the  word  "  return  "  required  that 
the  exception  should  be  confined  to  the  latter  class.  But  the 
contrary  is  well  settled  both  here  and  in  England,  (u)  And 
it  seems  that  this  exception  to  the  statute  of  limitations 
applies  to  foreigners,  even  where  they  have  an  agent  residing 
in  the  State  where  the  suit  is  brought,  (o)  Where  the  debtor 
is  a  resident  of  the  State  or  country  at  the  time  the  cause  of 
action  accrues,  and  until  his  death,  the  statute  of  limitations 
commences  running  only  from  the  time  of  granting  letters  of 
administration  on  his  estate.  (/;) 

In  New  England,  where  attachment  by  mesne  process  pre- 
vailed, it  was  formerly  very  generally  provided  that  if  the 
defendant  had  left  property  within  the  State,  this  clause  did 
not  operate,  because  the  action  could  be  begun  and  kept 
alive  by  attachment.  And  under  this  provision  it  was  held 
that  real  estate  was  such  property,  and  prevented  the  opera- 
tion of  this  section,  although  under  attachment  for  more  than 


construction  of  the  statute,  within  its 
operation,  though  the  creditor  should 
have  no  knowledge  of  his  return.  So 
too  if  the  debtor,  liaving  no  intention  to 
reside  here,  comes  or  returns  into  the 
State,  and  ihis  is  known  to  the  creditor, 
and  he  has  an  o])portunity  to  arrest  the 
body,  the  case  is  brought  within  the 
statute.  In  the  latter  case,  it  is  neces- 
sary the  creilitor  should  be  apprised  of 
his  debtor's  being  within  the  jurisdiction 
of  the  State."  And  see  Hill  v.  Bellows, 
15  Verm.  727;  Didier  i'.  Davison,  2 
Sandf.  Ch.  Gl.  But  see,  contra,  State 
Bank  v.  Seawell,  18  Ala.  616. 

(n)  Tims  in  Ilnggles  v.  Keeler,  3 
Johns.  2G1,  Kent,  C.  J.,  said,  "  Whether 
the  defendant  be  a  resident  of  this  State, 
and  only  absent  for  a  time,  or  wlicther 
he  resijles  altogether  out  of  the  State,  is 
immaterial.  lie  is  equally  within  the 
proviso.  If  the  cause  of  action  arose 
out  of  the  State,  it  is  sufficient  to  save 
the  statute  from  running  in  favor  of  the 
party  to  be  charged,  until  he  comes 
within  our  jurisdiction.  This  has  been 
the  uniform  construction  of  the  English 


statutes,  which  also  speak  of  the  return 
from  beyond  seas  of  the  party  so  absent. 
The  word  return  has  never  been  con- 
strued to  confine  the  proviso  to  Enfjlish- 
men,  who  went  abroad  occasionally. 
The  exception  has  been  considered  as 
general,  and  extending  equally  to  for- 
eigners who  reside  always  abroad."  And 
see,  to  the  same  effect,  Stritliorst  v. 
Graeme,  3  Wils.  145,  2  Wm.  Bl.  723  ; 
Lafondc  v.  Ruddock,  24  E.  L.  &  E. 
239;  King  v.  Lane,  7  IMissouri,  241; 
Tagart  w.  The  State  of  Indiniia,  15  id. 
209';  Alexander  i\  Burnet,  5  Kich.  189; 
Estis  V.  Rawlins,  5  How.  (Miss.)  258; 
Hall  V.  Little,  14  Mass.  203;  Dunning 
V.  Chamberlin,  6  Verm,  127  ;  Graves  v. 
Weeks,  19  id.  178  ;  Chonniua  v.  Mason, 
1  Gall.  342.  But  see,  contra,  Snoddy  v. 
Cage,  5  Texas,  106  ;  Moore  v.  Hendnck, 
8  id.  253. 

(o)  Wilson  V.  Applcton,  17  Mass. 
180. 

(/))  Benjamin  v.  De  Groot,  1  Dcnio, 
151  ;  Ciiristoiihcrs  c.  Garr,  2  Seld.  61; 
Davis  V.  Garr,  id.  124  ;  Douglas  v.  For- 
rest, 4  Bing.  686. 


CH.    v.]  STATUTE   OF   LIMITATIONS.  377 

its  value.  (5-)  Because  the  action  could  still  be  kept  alive, 
and  perhaps  the  first  attachment  might  be  defeated.  But 
this  clause,  respecting  property,  is  now,  in  some  cases,  omit- 
ted, (r)  It  is,  however,  sometimes  provided,  that  if,  after 
the  action  accrues,  the  defendant  shall  be  absent  from,  and 
reside  out  of  the  State,  the  time  of  his  absence  shall  not  be 
taken  as  any  part  of  the  time  limited  for  the  commencement 
of  the  action.  Under  this  clause  the  question  has  arisen 
whether  successive  absences  can  be  accumulated,  and  the 
aggregate  deducted  from  the  time  elapsed  after  the  accruing 
of  the  cause  of  action ;  or  whether  the  statute  provides  only 
for  a  single  departure  and  return,  after  which  it  continues  to 
run,  notwithstanding  any  subsequent  departure.  And  this 
question  has  been  decided  differently  in  different  States,  (s) 
The  question  has  also  arisen,  whether  this  clause  contemplates 
temporary  absences,  or  only  such  as  result  from  a  permanent 
change  of  residence.  And  upon  this  question  also  learned 
courts  have  differed,  [l) 

It  has  been  recently  held  in  England,  that  if  there  be 
several  defendants,  and  some  of  them  are  abroad,  and  some 
at  home,  the  statute  does  not  begin  to  run  in  regard  to  any 
who  are  at  home,  until  all  are  within  reach  of  suit.  (?/)  For 
although,  if  one  of  several  co-plaintifTs  is  within  seas,  the 
statute  runs,  because  one  plaintiff"  can  use  the  names  of 
the  others  in  his  action,  it  is  otherwise  as  to  co-defendants. 
The  plaintiff  can  sue  those  only  who  are  within  reach  ;  and 
if  compelled  to  sue  them,  he  may  have  a  judgment  against 

{q)  Byrne  v.  Crowninshield,  1  Pick,  if  it  be  such  that  the  creditor  cannot, 

263.  during  the  time  of  its  continuance,  mai^e 

(r)  See  Mass.  Rev.  St.  c.  120,  §  9.  legal  service  upon  the  debtor,  must  be 

(s)  In   New   York  it  has  been  held,  reckoned.     And  see  Vanlandingham  v. 

*that   tlie    statute   provides   for  only   a  Huston,  4  Gilm.  125.     But  in  Wheeler 

single   departure  and  return.     Cole  v.  v.  Webster,  IE.  D.  Smith,  1,  the  Court 

Jessup,  2Barb.  309  ;  Dorr  y.  Swartwout,  of  Common   Pleas   for   the    City  and 

1  Blatch.    179.     But  the   contrary  has  County  of  New  York,  held  that,  in  or- 

since  been  decided  in  New  Hampshire,  der  to  interrupt  the  running  of  the  sta- 

Gilman  v.  Cutts,  3  Post.  376.    And  see  tute,  it  is  not  sufficient  to  prove  that  the 

Smith  I'.  The  Heirs  of  Bond,   8   Ala.  debtor,  after  the  cause  of  action  accrued, 

386  :  Chenot  v.  Lefevre.  3  Gilm.  637.  from    time   to   time  departed  and  was 

(t)  In  the   case  of  Gilman  y.  Cutts,  repeatedly  absent    from   the  State ;    he 

s«/)ra,  the  Superior  Court  of  New  Hamp-  must  be  shown  to  have  departed  from, 

shire  held,  tliat  every  absence  from  the  and  resided  out  of  the  State. 

State,  whether  temporary  or  otherwise,        (u)  Pannin  v.  Anderson,  7  Q.  B.  811. 

*  " 

32 


378  THE  LAW  OF  CONTRACTS.  [PART  II. 

insolvent  persons,  which  satisfies  his  claim  and  destroys  his 
remedy  against  solvent  debtors. 

The  expression  "  beyond  the  seas  "  in  the  English  statute, 
is  repeated  in  some  of  the  American  statutes ;  and  in  others, 
such  phrases  as  "  beyond  sea,"  "  over  the  sea,"  "  out  of  the 
country,"  "  out  of  the  State,"  are  used  in  its  stead,  but  for 
an  equivalent  purpose.  These  phrases  are  generally  con- 
strued to  mean,  out  of  the  State  or  jurisdiction  where  the  case 
is  tried;  (y)  but  our  notes  will  show  that  there  is  much  autho- 
rity for  construing  any  such  phrase  as  meaning  beyond  the 
limits  of  the  United  States,  (lu) 

There  is  some  uncertainty  whether  it  is  a  good  defence  at 
law  against  the  operation  of  the  statute,  when  an  action  is 
grounded  upon  a  fraud  committed  more  than  six  years  be- 
fore, that  it  was  not  discovered  until  within  six  years.  There 
is  no  exception  against  fraud,  in  the  English  statute  ;  nor  is 
such  an  exception  generally  made  in  this  country.  And  al- 
though in  equity,  this  would  remove  the  bar  of  the  statute, 
almost  as  a  matter  of  course,  (x)  there  is  some  difficulty  in 
giving  effect  to  it  at  law.  Nevertheless,  the  prevailing  rule 
in  this  country  prevents  the  six  years  from  beginning  to 
run,  even  at  law,  until  the  fraud  is  discovered  by  the  plain- 
tiff; (//)  but  our  notes  will  show  that  there  is  much  diversity 
in  the  decisions  on  this  subject. 

(»-■)  Gahisha!;.  Coblcish,  13  N.  H.  79 ;  (x)  Mayne  r.  Griswold,  3  Sandf.  463  ; 

Field  1-.  Dickenson,  3  Pike,  409  ;  Wake-  Kane   v.  IJloodgood,  7   Johns.  Ch.    90,' 

field   V.    Smart,    3    Eng.    (Ark.)  488;  122;  Stocks  v.   Van  Leonard,  8  Geo. 

Richardsoni?.  Richardson,  6  Ohio,  125  ;  511;  Chaster    v.    Trevclyan,  11    01.  & 

Pancoast    v.    Addison,    1    H.  &  John.  Fin.  714;  Blair  v.  Bromley,    5    Hare, 

350;  Forbes  v.  Foot,  2  McCord,   331  ;  542. 

Murray  v.  Baker,  3  Wheat.  541  ;    Shel-  (y)   Sherwood   ?>.   Sutton,  5  Mason, 

by  V.  Guy,  11  id.  361.  143;  Conyers  v.  Kenans,  4  Geo.  308; 

Persons  v.  Jones,  12  id.  371  ;  The  First 

{w)  Thus  in  Pennsylvania  the  term  Massachusetts  Turnpike  Corp.  v.  Field, 

"beyond  tlie  seas"  is  construed  to  mean  3  Mass.  201  ;  Horner  v.  Fish,  1    Pick, 

without  the  limits  of  the  United  States.  435  ;  Pennock   v.   Freeman,    1    Watts, 

Thurston  v.  Fisher,  9  S.  &  R.  288.  Also  401  ;  Harrell  v.  Kelly,  2  McCord,   426; 

in  North  Carolina.     Whitlockc  v.  Wal-  But   see,  contra,   Troup   v.    Smith,  20 

ton,  2  Murphy,  23  ;  Earle  v.  Dickson,  1  Johns.  33;  Leonard  v.  Pitney,  5  Wend. 

Dev.  16.     And  in  Missouri.    Marvin  f.  30  ;  Allen  v.  Mille,  17  id.  202  ;  Smith 

Bates,   13  Missouri,  217;   Fackler    v.  i^.  Bishop,  9  Verm.  110;  Lewis  i\  IIous- 

Fackler,  14  id.  431.  ton,  11  Texas,  642. 


CH.   v.]  STATUTE   OP  LIMITATIONS.  379 


SECTION  VIII. 

THAT  THE   STATUTE  AFFECTS   THE    REMEDY   ONLY,   AND   NOT  THE 

DEBT. 

The  statute  only  declares  that  "  no  action  shall  be  main- 
tained;" but  not  that  the  cause  of  action  is  made  void. 
Hence,  although  the  remedy  by  action  is  lost,  a  lien  is  not 
lost.  If  one  holds  a  note  against  which  the  statute  has  run, 
and  also  a  mortgage  or  pledge  of  real  or  personal  property  to 
secure  it,  he  cannot  sue  the  note,  but  he  can  take,  or  hold 
possession  of  the  property,  and  sell  it,  if  it  be  personal,  with 
proper  precautions,  or  have  a  bill  in  equity,  to  foreclose  his 
mortgage.  And  if  his  lien,  whatever  it  be,  fails  to  pay  the 
whole  amount  of  the  note,  he  loses  the  remainder,  because  he 
can  have  no  action  vpon  it,  although  he  may  have  proper 
process  founded  upon  the  debt  and  the  security,  to  establish 
his  lien,  and  make  it  available  in  payment  of  the  debt,  [z) 

(z)    Spears   v.   Hartley,  3  Esp.  81 ;  Draper  v.  Glassop,  1   Lord  Raymond, 

Quantock   u.  England,    5   Burr.  2628;  153,  and  Anon.  Salkcld,  278,  which  were 

Williams  v.  Jones,  13  East,  450 ;  Chap-  decided  upon  tke  ground  that  the  statute 

pie  t'.  Durston,  1   C.  &  J.  1  ;  Manor   v.  of  limitations  destroyed  the  debt  as  well 

Pyne,  2  C.  &  P.  91.    The  early  cases  of  as  the  remedy,  have  now  no  authority. 


380  THE   LAW   OF   CONTRACTS.  [PART  II. 

CHAPTER    VI. 

OF  INTEREST  AND   USURY. 

Sect.  1.  —  Of  Interest^  and  ivhen  it  is  recoverable. 

Originally,  the  word  usury  meant  any  money  received  for 
the  use  of  other  money.  Whether  it  were  more  or  less,  such 
taking  was  thought  to  be  unlawful,  or,  at  least,  immoral.  In 
modern  times,  a  moderate  payment  for  the  use  of  money 
has  been  held  to  be  lawful ;  and  to  this  the  name  of  interest  is 
given ;  or  rather  such  payment  of  money  for  the  use  of 
money,  whether  it  be  more  or  less,  is  now  called  interest, 
while  the  word  usury  is  now  confined  to  the  taking  of 
more  than  the  law  allows. 

Now,  and  for  some  generations,  the  law  of  England  and  of 
this  country  not  only  permits  parties  to  bargain  for  a  certain  rate 
of  interest,  and  enforces  that  bargain,  but  it  makes  it  for  them, 
in  many  cases;  that  is,  where  it  is  certain  that  money  ought 
now  to  be  paid,  and  ought  to  have  been  paid  long  since,  the 
law,  in  general,  implies  conclusively  that  for  the  delay  in  the 
payment  of  the  money,  the  debtor  promised  to  pay  legal  in- 
terest. («) 

This  interest  is  allowed  on  money  withheld,  if  not  on  the 
ground  of  some  contract,  express  or  implied,  to  pay  it,  then 
as  damages  for  default  in  retaining  the  money  which  belongs 
to  another.  The  contract  may  be  implied  from  the  usage  of 
a  place,  or  of  a  trade,  {b)  or  from  the  course  of  dealing  be- 
tween the  parties,  {bb)  or  from  the  practice  of  one  party  if 
that  be  known  to  the  other  party,  (c) 

Among  the  cases  in  which  interest  has  been  allowed  for 
the  detention  of  a  debt,  the  following  may  be  considered 
the  most  important :  In  an  action  of  debt  on  a  judgment,  [d) 

(a)  Selleck   v.   French,  1  Conn.  32;  {hh)  Esterly  v.  Cole,   3  Comst.  502, 

Ecid  r.   llensselaer   Glass.  Factory,    3  1  Barl).  235. 

Cow.  393,  5  Id.  589  ;  Dodge  v.  Perkins,  (r)  M'Allister  v.  Rcab,  4  Wend.  483, 

9  rick.  3G9.  8  Wend.  109;  Esterly  v.  Cole,  su},ra. 

(h)  Meech   v.    Smith,   7  "Wend.  315  ;  ((/)    Klock   v.    Kobinson,    22    Wend. 

Koous  V.  Miller,  3  W.  &  S.   271.  157;  Prescott  v.  Parker,  4  Mass.  170; 


CH.    VI.] 


OF  INTEREST  AND   USURY. 


881 


or  an  account  liquidated,  (e)  For  goods  sold,  interest  accrues 
after  the  day  of  payment ;  (/)  On  an  unsettled  claim,  after 
a  demand  of  payment,  (g-)  For  rent  to  be  paid  at  a  fixed 
time,  interest  is  payable  from  the  time  the  rent  becomes 
due,  (h)  even  if  it  be  payable  in  specific  articles,  (i)  For 
money  paid  for  the  use  of  another,  interest  is  due  from  the 
time  of  payment,  (j)  So  it  has  been  held  in  cases  of  money 
lent,  (k)  If  the  money  is  due  now,  but  not  payable  until 
some  act  of  the  promisee,  as  if  payable  on  demand,  then 
that  act  must  take  place  before  any  claim  for  interest  can 
accrue.  (/) 

In  England,  the  weight  of  authority  would  seem  to  estab- 
lish a  different  rule  ;  namely,  that  interest  should  not  be  added 
in  the  amount  of  damages,  unless  there  be  a  distinct  contract 
to  pay  interest ;  (m)  but  there  also  this  contract  may  be  im- 


Gwinn  v.  Whitaker,  1  H.  &  J.  754; 
Hodgdon  v.  Hodgdon,  2  N.  H.  169. 

(c)  Blancy  v.  Hendrick,  3  Wils.  205 ; 
Walden  v.  Sherburne,  15  Johns.  409, 
424 ;  Liotard  v.  Graves,  3  Gaines,  226, 
234  ;  Elliott  v.  Minott,  2  McCord,  125. 

(/)  Crawford  v.  Willing,  4  Dallas, 
286,  289  ;  Bate  v.  Burr,  4  Harrington, 
130;  Porter  v.  Hunger,  22  Vt.  191; 
Esterly  v.  Cole,  3  Comst.  502. 

(r/)  Mcllvaine  v.  Wilkins,  12  N.  H. 
474  ;  Gammell  v.  Skinner,  2  Gall.  45  ; 
Barnard  v.  Bartholomew,  22  Pick.  291 ; 
See  Goff  i'.  Rheboboth,  2  Cush.  475. 

(h)  Clark  v.  Barlow,  4  Johns.  183; 
Williams  v.  Sherman,  7  Wend.  109  ; 
Dennison  v.  Lee,  6  G.  «&  J.  383  ;  Elkin 
V.  Moore,  6  B.  Mon.  462  ;  Buck  v.  Fish- 
er, 4  AVhart.  516. 

(i)  Lush  V.  Druse,  4  Wend.  313; 
Van  KensStlaer  v.  Jewett,  5  Denio,  135, 
S.  C.  2  Comst.  135  ;  Van  Rens.sclaer  v. 
Jones,  2  Barb.  643.  But  sec  Phillips 
V.  Williams,  5  Gratt.  259. 

ij)  Gibbs  V.  Bryant,  1  Pick.  118; 
Sims  V.  Willing,  8  S.  &  R.  103  ;  Good- 
loe  V.  Clay.  6  B.  Mon.  236;  Reid  v. 
Rensselaer  Glass  Factory,  2  Cow.  393, 
5  id.  589. 

(k)  Dihvorth  v.  Sinderling,  1  Binney, 
488 ;  Liotard  v.  Graves,  3  Caincs,  226  ; 
Reid  V.  Rensselaer  Glass  Factory ;  but 
in  Hubbard  v.  Charlestown  Branch  R. 
R.  Co.,  11  Met.  124,  Avhere  a  party  had 


overdrawn  money  at  a  bank,  by  mistake, 
it  was  held  that  interest  could  not  be  re- 
covered until  after  demand  made  or 
some  default  in  jniyment.  See  Simons 
v.  Walter,  1  McCord,  97 ;  King  v. 
Diehl,  9  S.  &  R.  409.  See  1  American 
Leading  Cases,  341,  where  in  a  note 
under  Selleck  v.  French,  the  whole  sub- 
ject of  interest  is  thoroughly  considered. 
(/)  Jacobs  V.  Adams,  1  Dallas,  52  ; 
Hunt  v.  Nevers,  15  Pick.  500 ;  Brey- 
foyle  V.  Beckley,  16  S.  &  R.  264  ;  Nel- 
son V.  Cartwell,  6  Dana,  7  ;  Henderson 
V.  Blanchard,  4  La.  Ann.  23. 

{m)  DeBcrnales  v.  Fuller,  2  Camp.  426  ; 
Attwood  V.  Taylor,  1  M.  &  G.  279,  note. 
In  De  Havilland  v.  Bowerbank,  1  Camp. 
50,  Lord  Ellenhoromjh  said,  tliat  "  He 
thought,  that  where  money  of  the  plain- 
tiff had  come  to  the  hands  of  the  de- 
fendant, to  establish  a  right  to  interest 
upon  it,  there  should  cither  be  a  sijccific 
agreement  to  that  effect,  or  something 
should  appear  from  which  a  promise  to 
pay  interest  might  be  inferred,  or  proof 
should  be  given  of  the  money  being 
used."  In  Calton  v.  Bragg,  15  East,  223, 
Lord  Ellenborough  said,  "  Lord  Man.fjield 
sat  here  for  upwards  of  30  years ;  Lord 
Kcvyon  for  above  13  years,  and  I  liave 
now  sat  here  for  more  than  9  years  ;  and 
during  this  long  course  of  time,  no  case 
has  occurred  where,  upon  a  simple  con- 
tract of  lending,  without  an  agreement 
for  payment  of  the  principal  at  a  certain 


382  THE  LAW   OF   CONTRACTS.  [PART  11. 

plied  from  the  usage  of  trade,  or  from  other  circumstances,  (n) 
In  this  country  the  rule  seems  to  be  well  established,  that 
whoever  receives  money  not  his  own  and  detains  it  from  the 
owner  unlawfully,  must  pay  interest  therefor.  Hence  a  pub- 
lic officer  retaining  money  wrongfully  is  chargeable  with  in- 
terest during  the  time  of  such  wrongful  detainer,  (o)  So  an 
agent  unreasonably  neglecting  to  inform  his  principal  of  the 
receipt  of  money,  is  liable  for  the  interest  from  the  time 
when  he  should  have  communicated  such  information,  (p) 
But  an  agent  is  not  generally  liable  for  interest  on  funds  in 
his  hands,  unless  he  uses  them,  or  is  in  default  in  account- 
ing for  them,  (q)  Interest  is  recoverable  on  money  fraud- 
ulently obtained  and  withheld,  (r) 

Generally,  where  unliquidated  damages  are  demanded,  in- 
terest is  not  payable ;  nor  is  it  in  actions  grounded  on  tort. 
But  even  in  these  actions,  it  is  true  that  interest  is  excluded 
in  name  rather  than  fact.  That  is,  the  jury  may  make  use  of 
it  in  their  own  estimate  of  damages,  if. all  the  circumstances 
of  the  case  lead  to  the  inference  that  there  was  a  contract  or 
understanding  that  interest  should  be  paid,  or,  if  they  should 
be  satisfied  that  the  plaintiff  would  not  be  adequately  and 
justly  compensated  or  indemnified  without  the  allowance  of 
interest,  (s) 

time,  or  for  interest  to  run  immediately,        (s)  Arnott  i'.   Ee(lfcrn,3  Binp.  353; 

or  under  special    circumstances   from  Dox   v.  Dcy,  3   Wend.   356 ;    Hull   v. 

wliich  a  contract  for  interest  was  to  be  Caldwell,    6  J.  J.  Marsh.  208  ;  Sargent 

inferred,  has  interest  been  ever  given."  v.   Franklin  Ins.  Co.   8   Pick.   90.     In 

{n)  Kddowes   r.    IIoi)kins,    1    Uoug.  Ancrum  v.  Slone,  2  Specrs,  .'J94,  Frost, 

375 :  Moore  v.  Voughton,  1  Stark.  487  ;  J.,  in  delivering  the  opinion  of  the  court, 

Blaney  «.  Ilcndrick,  3  Wils.  205,2  W.  said;    "The  first  [ground   of  apjieal,] 

B1.76I.  Where  liie  principal  is  to  he  paid  presents  the  question  of  law,  wlietlier, 

at  a  specific  time,  an   agreement  to  pay  in  a  special  action  on  the  case,  in  as- 

intcrcst  after  that  time  is  implied.   Rob-  sumpsit  on  a  warranty  of  soundness,  in- 

inson  v.   Bland,  2  Burr.  1086  ;   Calton  tertst   is   recoverable   eo   nomine.     It  is 

V.  Bragg,  15  East,  226,  per  Lord  Ellen-  necessary  to  the  allowance  and  .estimate 

borough;  Jioddam  r.  Kiley,  2  Bro.  C.  C.  of  interest,  to  ascertain  the  sum  due,  and 

2;  Mountford  r.  Willcs,  2  B.  &  P.  337.  the  time  when  payable.     Accordingly, 

(o)  Commonwealth  r.  Crevor,  3  Bin-  all  engagements  or  acknowledgments 
ncy,  123;  Crane  v.   Dygert,   4   Wend. »  in  writing,  expressing  the  sum  due  and 

675;  People  i-.   Guthcric,  9  Johns.  71 ;  the  time  of  jiaymcnt,  have  been  recog- 

Hudson  i;.  Tcnncy,  6  N.  II.  456.  nizcd  as    liquidated  demands,  and   on 

(p)  Dodge  V.  Perkins,  9  Pick.  368.  them  it  has  l)een  permitted  to   recover 

(q)   Ellery  v.    Cunningham,    1    Met.  interest  by  way  of  ilamagcs.     Interest 

112;  Bedell  V.  .Jenney,  4  Oilman,  194;  has  also  been  allowed  in  liabilities  to 

Williams  v.  Storrs,  6  Johns.  Ch.  353.  pay  money,  though  not  in  writing,  if  the 

(r)  Wood  V.  Bobi)ins,  11  Mass.  504.  sum  is  certain  or  cajiable  uf  being  re- 
Sec  supra,  note  (a).  duccd  to  certainty,  from  the  time  when 


en.  VI.] 


OF  INTEREST  AND   USURY. 


383 


SECTION  II. 


WHAT  CONSTITUTES   USURY. 


The  statutes  of  usury  in  this  country  have  been  copied,  in 
substance,"  but  with  more  or  less  variation  of  form,  from  the 
12  Anne,  stat.  2,  ch.  16,  which  provides  that  no  person  shall 
take,  directly  or  indirectly,  upon  any  contract,  "  for  loan  of 
any  moneys,  wares,  merchandise,  or  other  commodities  what- 


either  by  the  agreement  of  the  parties 
or  the  construction  of  law,  the  payment 
was  demaiuiable.  As  in  cases  of  money 
had  and  received,  paid  for  the  use  of 
another,  or  by  mistake,  or  on  an  ac- 
count stated  ;  and  on  open  accounts  by 
express  agreement  j  and  when,  by  the 
course  of  dealing  between  the  parties 
or  tlie  usage  of  trade,  such  agreements 
may  be  inferred.  The  time  of  payment 
must  also  be  determined,  either  by  the 
agreement  of  the  parties,  the  course  of 
dealing  between  them,  by  known  cus- 
tom, or  the  usage  of  trade.  Thus  open 
accounts  do  not  bear  interest,  though 
the  sum  is  certain;  because  by  custom 
the  credit  is  indefinite.  'But  if  there  be 
an  agreement,  expressed  or  implied,  it 
is  allowed  accordingly.  It  is  not  re- 
coverable on  a  quantum  mermt,  for  work 
and  labor,  nor  quantum  valebet,  for  goods 
sold,  nor  on  a  verbal  contract  to  pay  a 
sum  certain  for  rendering  a  service,  1 
Hill,  393 ;  nor  on  a  due-bill,  payable 
on  demand,  though  expressed  to  be  for 
a  loan  of  money,  on  the  day  of  the  date, 
except  from  the  time  of  demand,  2  Bail. 
276  ;  nor  on  a  balance  of  a  factor's  ac- 
count, due  to  his  emjiloyer,  except  from 
the  time  of  demand.  1  Hill,  400.  Other 
cases  might  be  adduced  to  show  that  the 
general  rule  is  to  allow  interest,  co  no- 
mine, only  on  money  demands  certain 
or  capable  of  being  reduced  to  certainty, 
and  payable  at  a  definite  time,  either 
expressly  or  impliedly.  There  may  be 
some  exceptions  to  the  rule,  and  its  ap- 
plication has  been  extended  by  construc- 
tion of  law.  Thus,  on  a  breach  of  war- 
ranty, if  the  contract  be  rescinded  by  a 
tender  of  the  property  to  the  seller,  in- 
debitatus assumpsit  will  lie  for  the  price 
paid,  as  money  had  and  received  by  the 
vendor  to  the  use  of  the  vendee,  and  in- 
terest may  be  recovered.     And  in  cove- 


nant, on  a  warranty  of  title,  interest  may 
be  found,  in  addition  to  the  value,  for 
a  total  or  partial  eviction.  These  cases 
proceed  on  the  ground  of  a  rescision  of 
contract  and  restitution  to  the  plaintiff 
of  the  price  paid.  But  a  special  assump- 
sit, on  a  warranty  of  soundness,  for  dam- 
ages, is  subject  to  the  rule  governing 
actions  sounding  in  damages,  that  in- 
terest is  not  recoverable  co  nomine.  In 
Holmes  i\  Misroom,  1  Ircd.  21,  which 
was  a  special  assumpsit,  the  law  is  thus 
affirmed  by  Nott,  J. :  "  This  was  a  spe- 
cial action  on  the  ease,  sounding  altoge- 
ther in  damages,  and  tlicrefore  could 
not  carry  interest.  I  think  the  jury 
might  have  made  the  value  of  the  pro- 
perty and  interest  thereon  the  measure 
of  damages,  and  found  a  verdict  for  the 
aggregate  amount;  but  no  law  has  been 
introduced  to  show  that  they  could  give 
interest  eo  nomine,  in  an  action  of  this 
sort."  .  .  .  To  the  argument,  if 
interest  may  be  allowed  in  the  aggre- 
gate damages  found  by  a  verdict,  why 
may  it  not  be  allowed  co  nomine  ?  The 
reply  is,  the  law  does  not  inquire  into 
the  particulars  of  a  verdict  for  damages, 
and  in  some  cases  interest  furnishes  a 
just  and  convenient  measure  for  the 
jury.  But  it  is  a  stated  compensation 
for  the  use  of  money,  and  as  it  cannot 
be  separated,  even  in  idea,  from  debt, 
seems  not  properly  incident  to  uncertain 
and  contingent  damages.  The  distinc- 
tion is  admitted  to  be  one  of  form,  de- 
pending upon  the  form  and  cause  of 
action."  In  the  same  way  interest  may 
be  taken  into  account  by  the  jury, in  as- 
sessing damages  in  trespass  and  trover  ; 
Hyde  v.  Strong,  7  Wend.  354  ;  Beals  v. 
Guernsey,  8  Johns,  44G  ;  Kennedy  v. 
Whitwell,  4  Pick.  4G6.  And  in  reple- 
vin;  Eowley  v.  Gilibs,  14  Johns,  385  ; 
Suydam  v.  Jenkins,  3  Sandf.  614. 


384  THE  LAW  OP  CONTRACTS.  [PART  II. 

soever,  above  the  value  of  five  pounds  for  the  forbearance  of 
one  hundred  peunds  for  a  year,  and  so  after  that  rate  for  a 
greater  or  lesser  sum,  or  for  a  longer  or  shorter  time;"  and 
that  "  all  bonds,  contracts,  and  assurances  whatsoever,  for 
payment  of  any  principal  or  money  to  be  lent,  or  covenanted 
to  be  performed,  upon  or  for  any  usury,  whereupon  or  where- 
by there  shall  be  reserved  or  taken  above  the  rate  of  five 
pounds  in  the  hundred,  as  aforesaid,  shall  be  utterly  void  ;" 
and  further  provides  that  any  person  who  shall  take  more 
than  five  pounds  per  cent.,  contrary  to  the  provisions  of  the 
statute  shall  forfeit  and  lose  for  every  such  offence  the  treble 
value  of  the  moneys,  wares,  merchandises,  and  other  things 
so  lent,  (t)  Our  statutes  differ  greatly  as  to  the  amount  which 
may  be  taken  or  received,  the  legal  interest  in  each  State  be- 
ing intended  to  represent  the  fair  worth  of  money,  and  that 
varying  greatly  in  different  parts  of  this  country.  They 
differ  also  very  much  in  the  penalties  with  which  they  visit 
the  offence  of  usury. 

Originally  the  principle  of  the  statute  of  Anne  was  adopted 
generally,  if  not  universally,  and  the  whole  debt  forfeited. 
Afterwards,  there  was  a  considerable  relaxation  in  this  re- 
spect; but  with  some  fluctuation  and  a  return  to  severity; 
and  now  usury  works,  generally,  a  forfeiture  of  the  usuri- 
ous interest  and  some  part  of  the  principal  or  the  lawful 
interest,  by  way  of  penalty. 

The  simplest  definition  of  usury  is,  the  taking  of  more  in- 
terest for  the  use  of  money  than  the  law  allows.  There 
must  therefore  be  the  use  of  money  ;  which  may  be  by  a  loan, 
or  by  the  continuance  of  an  existing  debt.  That  is,  one  may 
now  lend  money  to  another,  and  so  give  him  the  use  of  it,  or 
may  agree  with  him  that  he  shall  not  now  repay  a  sum 
which   has  become  due,  and  so  permit  him  to  use  it.  (ii) 

{t)  By  the  3  &  4  Will.  4,  c.  98,  s.  7,  and  loan  or  forbearance  of  any  money  upon 
2  &  3  Vict.  c.  37,  enlarging  tiic  statute  securityof  any  lands,  tenements,  or  here- 
of William,  all  contracts  were  taken  ditaments,  or  any  estate  or  interest 
from  the  operation  of  the  statute  of  tlierein."  Any  usurious  contract  is 
Anne.exec])!  those  contained  in  hills  of  therefore  valid  iu  Kngland,  with  the 
exchange  and  promissory  notes  having  above  excepted  cases.  Tliibault  v.  Gib- 
more  tlian  twelve  months  to  run,  those  son,  12  M.  &  Wels.  88. 
for  the  loan  of  money  less  in  amount  (u)  It  is  well  settled  that  if  there  be 
tlian  the  sum  of  ten  pounds  .sterling;  a  contract  for  the  payment  of  illegal  in- 
and  excepting  also  contracts  for  "  the  tcrcst,  for  the  further  forbearance  of  a 


en.  vl] 


OP   INTEREST   AND    USURY. 


385 


To  the  one  or  the  other  of  these  classes  all  contracts  for  the 
use  of  money  may  be  referred.  And,  to  constitute  the  offence 
of  usury,  there  must  be  an  agreement  that  he  who  has  the 
use  of  the  money  shall  pay  to  the  owner  of  it  more  than 
lawful  interest ;  that  is,  more  than  the  law  permits  to  be  paid 
for  the  use  of  money. 


SECTION  III. 

IMMATERIALITY   OF   THE   FORM   OF   THE   CONTRACT. 

It  is  entirely  immaterial  in  what  manner  or  form  or  under 
what  pretence  this  is  done,  (v)  And  countless  are  the  devices 
by   which  usurers  endeavor  to  avoid  the  provisions  of  the 


debt  at  that  time  existing,  or  if  money 
be  actually  paid  for  such  forbearance, 
it  is  usury.  Parker  v.  Ramsbottom,  5 
Dowl.  &  R.  138,  3  B.  &  Cr.  257,  post,  n. 
Evans  v.  Negley,  13  S.  &  R.  218  ;  Han- 
cock V.  Ilodfrson.  3  Scam.  333  ;  Carlis 
V.  McLaughlin,  1  Chipman,  112  ;  Sene- 
ca County  Bank  v.  Schermerhorn,  1 
Den.  135;  Gray  v.  Belden,  3  Flor.  110; 
Craig  V.  Hewitt,  7  B.  Mon.  476  ;  Young 
V.  Miller,  7  B.  Mon.  540.  See  also. 
Pollard  V.  Scholy,  Cro.  Eliz.  20. 

(v)  Symondos  v.  Cockerill,  Noy's  Rep. 
151  ;  Burton's  case,  5  Co.  69 ;  Richards 
V.  Brown,  Cowp.  770;  Doe  cl.  Met- 
calf  i;.  Brown,  Holt,  295  ;  Marsh  v.  Mar- 
tindale,  3  B.  &  Pull.  154.  In  Floyer  v. 
Edwards,  Cowper,  112,  Lord  Mansjidd 
said,  "  In  all  questions  in  whatever  re- 
spect repugnant  to  the  statute,  we  must 
get  at  the  nature  and  substance  of  the 
transaction  ;  the  view  of  tlie  parties 
must  be  ascertained,  to  satisfy  the  court 
that  there  is  a  loan  and  borrowing ;  and 
that  the  substance  was  to  borrow  on  the 
one  part  and  to  lend  on  the  other,  and 
where  the  real  truth  is  a  loan  of  money, 
the  wit  of  man  cannot  find  a  shift  to 
take  it  out  of  the  statute.  If  the  sub- 
stance is  a  loan  of  money  nothing  Avill 
protect  tlie  taking  more  than  five  per 
cent.,  and  though  the  statute  mentions 
only  '  for  loan  of  moneys,  wares,  mer- 
chandises, or  other  commodities,'  yet 
any  other  contrivance,  if  the  substance 
of  it  be  a  loan,  will  come  under  the  word 
'  indirectly.'"     And  in  Scott  v.  Lloyd,  9 

VOL.  II.  33 


Peters,  446,  in  which  the  bona  fide  pur- 
chase of  an  annuity  is  admitted  to  be 
valid,  although  more  than  six  per  cent, 
profit  be  secured.  Marshall,  C.  J.,  said  ; 
"  Yet  it  is  apparent  that  if  giving  this 
form  to  the  contract  will  afil^ord  a  cover 
which  conceals  it  from  judicial  investi- 
gation, the  statute  would  become  a  dead 
letter.  Courts,  therefore,  perceived  the 
necessity  of  disregarding  the  form  and 
examining  into  the  real  nature  of  the 
transaction.  If  that  be  in  fact  a  loan, 
no  shift  or  device  will  protect  it."  See 
also  Tate  r.  Wellings,  3  T.  R.  531 ; 
Chesterfield  v.  Janser,  1  Atk.340;  Law- 
ley  V.  Hooper,  3  Atk.  278;  Drew  v. 
Power,  1  Sch.  &.  Lef  182  ;  Hammett  v. 
Yea,  1  Bos.  &  Pull.  151  ;  Douglass  v. 
McChcsncy,  2  Rand.  112;  Andrews  v. 
Pond,  13  Peters,  65  ;  Tyson  v.  Rickard, 

3  Harr.  &  Johns.  113 ;  Bank  of  the  U. 
S.  V.  Waggener,  9  Pet.  379 ;  Bank  of 
U.  S.  r.  Owens,  2  Pet.  536,  537  ;  Lloyd 
V.  Scott,  4  Pet.  226  ;  Shober  v.  Hauser, 

4  Dev.  &  Bat.  91  ;  Delano  i-.  Rood,  1 
Oilman,  690 ;  Spaulding  v.  Bank  of  Mus- 
kingum, 12  Ohio,  544;  Pratt  v.  Adams, 
7  Paige,  61 6  ;  Dowdall  v.  Lenox,  2  Edw. 
Ch.  267  ;  Sevmour  v.  Strong,  4  Hill, 
255  ;  per  Con-en,  J.,  4  Hill,  475  ;  Ely  v.  Me 
Clung,  4  Port.  128  ;  Clarkson's  Admr.  v. 
Garland,  1  Leigh,  147  ;  Stcptoe's  Admrs. 
V.  Harvey's  Exrs.  7  Leigh,  501 ;  Brown 
V.  Waters,  2  Marvl.  Ch.  Dec.  201  ; 
AVright  V.  Alexander,  11  Ala.  236 ;  Wil- 
liams y.  Williams,  3  Green,  255;  Heytle 
u.  Logan,  1  A.  K.  Marsh.  529. 


386 


THE   LAW    OF   CONTRACTS. 


[part  ir. 


statute;  as,  by  lending  a  thousand  dollars  on  a  note  for  a  year 
at  lawful  interest  and  immediately  receiving  half  of  it  back 
again  in  payment ;  or  by  selling  some  property,  at  the  time  of 
the  loan,  at  an  exorbitant  price,  (w)  In  this  case  a  nice  dis- 
tinction has  been  made  as  to  the  onus  of  proving  value.  In 
general,  the  lender  or  nominal  seller  is  not  called  upon  to 
prove  that  the  value  of  the  goods  purporting  to  be  sold  and 
delivered  instead  of  the  whole  or  a  part  of  the  money  required, 


(ti>)  See  Lowe  v.  Waller,  Doug.  736. 
In  this  case  the  defendant  applied  seve- 
ral times  to  Harris  &  Stratton  to  obtain 
the  discount  of  a  bill  for  200/.,  who  had 
replied  tliat  they  could  not  advance  mo- 
iiev,  but  only  goods.  Subsequently  the 
defendant  agreed  to  take  a  certain  quan- 
tity of  goods,  which  were  delivered  to 
him,  and  the  bill  of  exchange  delivered 
to  Harris  &  Stratton,  together  with  col- 
lateral security  for  its  payment.  The 
goods  were  disposed  of  by  the  defendant 
to  an  auctioneer,  for  120/.  In  an  action 
upon  the  bill,  against  the  defendant,  to 
which  the  defence  of  usury  was  pleaded. 
Lord  Mctnsjiekl  directed  the  jury  that 
they  were  to  consider  whether  the  trans- 
action between  the  defendant  and  Har- 
ris &  Stratton  was  not,  in  truth,  a  loan 
of  money,  and  the  sale  of  goods  a  mere 
conlrivancc  and  evasion.  The  jury 
having  found  the  contract  usurious,  a 
rule  lor  a  new  trial  was  granted,  and 
subsequently  Lord  Mansfield  delivered 
the  opinion  of  the  court  discharging  the 
rule.  Jn  Barker  v.  Vansommer,  1 
Brown's  Ch.  148,  the  plaintiff  had  given 
a  promissory  note  to  Vansommer  &  Co. 
for  2,224/.,  upon  receiving  from  them 
silks  vahied  by  the  parties  at  that 
amount,  but  which  were  sold  by  the 
plaintiff  for  799/.  This  bill  was  brought 
by  the  jilaintiff  to  have  the  note  given 
up.  Lord  Thurlow  said  that  the  court 
was  to  inquire  whether,  under  the  mask 
of  trading,  this  Avas  not  a  method  of 
lending  money  at  an  extraordinary  rate 
of  interest,  and  that  there  was  not  a 
doubt  that  the  transaction  was  merely 
for  the  purpose  of  raising  money.  A 
decree  for  relief  was  made.  In  I)oc  d. 
Davidson  v.  Barnard,  1  Esp.  11,  which 
■was  an  action  upon  a  mortgage,  tlie  de- 
fendant proved  that  the  mortgage  debt 
was  the  delivery  of  stock  to  the  defen- 
dant, at  7.')  per  cent,  on  its  value,  which 
he  was  compelled  to  sell  at  7.3  per  cent., 
the  market  ])ricc  at  that  time.  Lord 
Keuyon    held    the    transaction    clearly 


usurious.  See  also  Pratt  v.  Willey,  1 
Esp.  40.  The  proposition  that  where 
upon  negotiations  foraloan  the  borrower 
receives  depreciated  bank  notes,  or  pro- 
perty of  any  kind  of  a  less  value  than 
the  nominal  amount  of  tiie  loan,  such 
transaction  is  usurious,  is  supported  by 
the  following  American  authorities : 
Delano  v.  Rood,  1  Oilman,  690  ;  Morgan 
r.  Schermerhorn,  1  Paige,  .544  :  Grosve- 
nor  V.  Flax  &  Hem])  Manf.  Co.  1  Green's 
Ch.  45.3;  Valley  Bank  v.  Stribling,  5 
Rand.  132  ;  7  Lcigli,  26  ;  Gicenhow's 
Adm'x.  V.  Harris,  6  Munf  472 ;  2  Deo. 
333;  Archer  f.  Putnam,  12  Sm.  &  M. 
286  ;  Swanson  v.  White,  :)  Humph.  373  ; 
Anonymous,  2  Desaus.  333  ;  Bank  of 
U.  S.  V.  Owens,  2  Peters,  527  :  Rose  v. 
Dickson,  7  Jolins.  196  ;  Dry  Dock  Bank 
V.  Amcr.  Life  Ins.  &  Trus.t  Co.  3  Corns. 
344  ;  Douglass  v.  McChcsney,  2  Rand. 
109;  Stribling  I'.  Bank  of  the  Valley,  5 
Rand,  132;  Ehringhaus  v.  Ford,  3  Ire. 
L.  522;  Eagleson  v.  Shotwell,  1  Johns. 
Clj.  536  ;  Pratt  v.  Adams,  7  Paige,  615  ; 
Wcatherhead  v.  Beyers,  7  Yerg.  545  ; 
Collins  V.  Secreli,  7  Monr.  335 ;  Burr- 
ham  V.  Gentry,  Ibid,  354 ;  Warfield's 
Adm's.  V.  Boswell,  2  Dana,  225 ;  Moore's 
Exr.  V.  Vance,  3  Dana,  366,  367.  But 
where  the  transaction  is  a  sale,  and  not 
a  shift  to  cover  a  loan,  depreciated  bank 
notes  or  stock  may  be  disposed  of  at  a 
rate  al)ove  their  current  market  value 
witiiout  usury.  Bank  of  the  U.  S.  v. 
Waggener,  9'Pct.  400  ;  Willoughby  v. 
Comstock,3  Edw.  Ch.424.  And  where 
the  discount  upon  uncurrcnt  money  is 
very  trifling,  and  tlie  same  will  i)ass  in 
tlie  market  \n  the  way  of  trade,  it  seems 
tiiat  its  reception  at  j)ar  is  no  violation 
of  the  statute.  Slo.sson  v.  Duff,  1  Barb. 
4.32.  Or  if  the  borrower  has  the  option 
of  returning  the  de])rcciatcd  bank  notes 
at  the  same  rate  at  which  he  received 
thcni,  this  it  seems  prevents  the  trans- 
action from  being  usurious.  Caton  v. 
Shaw,  2  H.  &  Gill,  14. 


CH.    VI.]  OF   INTEREST   AND   USURY.  387 

was  great  enough  to  relieve  the  contract  from  usury  ;  (x)  but, 
if  it  is  shown  that  the  borrower  was  compelled  to  receive  the 
goods,  this  casts  suspicion  on  the  transaction,  and  the  lender 
is  now  obliged  to  exculpate  himself  by  proof  of  their  value.  {//) 
Where,  however,  as  in  the  case  just  supposed,  goods  are 
delivered  and  received  as  a  part  or  the  whole  of  the  money 
advanced,  and  the  borrower  sells  them,  he  cannot  keep  the 
price  by  proving  the  contract  to  be  usurious,  nor  is  he 
answerable  for  them  in  their  value  at  the  time  they  were  de- 
livered; but  for  what  he  actually  receives;  as  it  is  considered 
that  they  were  given  him  to  be  sold.  Some  of  the  devices 
resorted  to  it  is  difficult  to  detect  or  to  prevent;  but  in  all 
cases,  the  only  question  for  the  jury  is,  has  one  party  had  the 
use  of  the  money  of  the  other,  and  has  he  paid  him  for  it 
more  than  lawful  interest  in  any  way  or  manner.  And  in 
this  determination  the  contract  will  not  be  held  good,  be- 
cause, upon  its  face,  and  by  its  words,  it  is  free  from  taint,  if 
substantially  it  be  usurious,  nor,  if  it  be  in  words  and  form 
usurious,  will  it  be  held  so,  if  in  substance  and  fact  it  is  en- 
tirely legal,  (c)  And  these  questions  are  for  the  jury  only, 
who  must  judge  of  the  intention  of  the  parties,  which  lies 
at  the  foundation  of  the  inquiry,  from  all  the  evidence  and 
circumstances,  (a)     And  the  questions  which    are   presented 

(x)  Rich   V.   Topping,  1  Esp.   176  ;  may  be  understood  that  in  similar  cases, 

Coombe  v.  Miles,  2  Camp.  553  ;  Gros-  this  is  the  rnle  by  which  I  shall  be  gov- 

venor   v.  Flax    &  Hemp   Manf.  Co.  1  crned  for  the  future.      When  a  man 

Green's  Ch.  453.  goes  to  get  a  bill  discounted,  his  object 

(y)  Hargreaves  v.  Hutchinson,  2  Ad.  is  to  procure  cash,  not  to  encumber  him- 

&  1^.12;  l)avis   r.    Hardacre,  2  Camp,  self  with  goods.    Therefore  if  goods  are 

375.    In  tiiis  case  the  defendant  applied  forced  upon  him,  I  must  have  proof  that 

to  the  plaintiff  to  discount  a  bill  of  ex-  they  were  estimated  at  a  sum  for  which 

change  of  700/.  for  him.     The  plaintiff  he  could  render  them  available  upon  a 

refused  to  do  so  unless  the  defendant  re-sale,  not  at  what  might  possibly  be  a 

would  take  a  check  for  2.')0/.,  a  promis-  fair  price  to  charge  to  a  purchaser  who 

sory  note  for  286/.,  and  a  landscape  in  stood  in  need  of  them." 

imitation  of  Poussin,  to   be   valued    at  ,  ^  r,     r      it-.j      nx-o^ 

iKA/      iM           .-                I          u^  I     »u„  (z)  Per  Lord  lenteraen.Lf.  0.,  \icctcv. 

150/.     Ihe   action  was  brought  by  the  ti-j        ^   -,  r>    [■     r\     ..ro      a     i 

1  .   ,.„.             .1     ,  .,,      T      1     i^r    1  Bidffood,  7  B.  &.  Cr.  458 :  Andrews  v. 

plamtm   upon  the  bdl-     Lord    EUenbo-  ,^    '^,       '„            „„             ' 

rourjk  said:    "Where  a  party  is  com-  ^''""'  l^  i-Cters,  /o. 

polled  to  take  goods,  in  discounting  a  (a)  Doe  d.  Metcalfy.  Brown,  1  Holt, 

bill  of  exchange,  I  think  a  presumption  N.  P.  295;  Masterman   v.   Cowrie,  3 

arises  that  the  transaction  is  usurious.  Camp.  488  ;  Carstairs  v.  Stein,  4  M.  & 

To  rebut    this   presumption,   evidence  Sel.  192  ;  Smith  r.  Brush,  8  Johns.  84  ; 

should  be  given  of  the  value  of  the  goods  Thomas  r.  Catheral,    5    Gill  &  J.  23  ; 

by  the  person  who  owes  on  the  bill.    In  Tyson  v.  Richard,  3  Harr.  &  John.  109; 

the  present  case  I  must  require  such  Stevens  v.  Davis,  3  Mete.  211  ;  Andrews 

evidence  to  be  adduced;  and  I  wish  it  v.  Pond,  13  Pet.  76,  77. 


388 


THE   LAW   OF   CONTRACTS. 


[part  II. 


thus  are  sometimes  extremely  nice.  Thus  a  contract  to 
borrow  stock,  valued  at  more  then  the  market  price,  and  to 
pay  lawful  interest  on  this  valuation,  would,  in  oar  opinion, 
be  usurious,  although  the  interest  reserved  might  be  no  more 
than  the  stock  earns;  [b)  but  if  the  stock  be  sold,  and  the 
money  arising  be  loaned,  with  an  agreement  to  replace  the 
stock  on  a  certain  day,  and  to  pay  such  interest  as  the  stock 
would  have  earned  in  the  mean  time,  it  is  not  usurious,  [c) 


(h)  In  Parker  i-.Ramsbottom,  5  D.  & 
Kv.  138  :  3  15.  &  Cr.  257  ;  B.  &.  C.  being 
inilebted  to  the  plaintitf  for  15,000/. 
in  stock  previously  advanced,  it  was 
agreed  between  tlie  parties  tliat  B.  &  C. 
should  be  released  from  replacing  the 
stock,  and  tliat  instead  thereof  they 
should  account  for  it  in  mone3%  at  the 
value  of  10,000/.,  paying  5  per  cent, 
interest  thereon  until  "the  principal  and 
all  interest  should  he  repaid.  At  the 
date  of  this  agreement  the  market  value 
of  the  stock  was  only  8,400/.  The 
plaintiff  claimed,  upon  tiic  issue  in  this 
case,  to  prove,  under  a  commission  of 
bankruptcy  against  B.  &.  C,  the  amount 
of  his  claim  under  this  agreement.  Ab- 
bott, C.  J., said  :  "  It  appears  to  me  that 
the  agreement  is  clearly  void  for  usury, 
because  it  secures  to  the  plaintiff  the 
sum  of  10,000/.  as  the  value  of  the 
stock  then  remaining  to  be  replaced, 
though  the  real  value  of  that  stock  was 
then  only  8,400/  "  Baijlpy,  J.,  said  : 
"I  entertain  no  doubt  that  the  agree- 
ment was  usurious,  and  consequently 
void.  The  statute  evidently  applies  to 
loans  of  goods,  or  anything  that  can  be 
called  money's  wortli,  as  well  as  loans  of 
money  itself.  In  this  case  the  original 
bargain  was  for  the  return  of  a  loan  of 
stock,  whicii  was  a  perfectly  legal  bar- 
gain ;  that  stock,  when  lirst  sold  out, 
produced  10,000/.,  but  when  the  second 
bargain  was  made  it  was  worth  only 
8,400/. ;  therefore  at  that  time  tlic  plain- 
tiff was  lending  a  stock  worth  8,400/. 
only,  and  stipulating  to  be  repaid  by 
10,000/.,  with  legal  interest  on  that 
larger  sum.  Tliat  was  certainly  usuri- 
ous." In  Astor  v.  Trice,  7  Martin  N. 
S.  408,  which  was  an  action  on  cer- 
tain bills  of  exchange,  the  defence  was 
usury.  The  consi(lerati(ni  for  tiic  bills 
was  a  loan,  purjiorting  to  be  ■'?(i4,000,  for 
whicli  the  plaintiff  charged  interest;  but 
he  disbursed  only  $8,850  in  cash,  and 
the  remainder  of  the   loan   was   United 


States  Bank  stock,  at  the  rate  of  $105| 
per  share,  when  the  market  value  at  that 
time  was  only  $104g  or  thereabouts. 
The  court  held  the  transaction  usurious 
and  the  bills  void. 

(c)  Tate  V.  Wellings,  3  T.  R.  531. 
Here  the  defendant  applied  to  the  plain- 
tiff's testator  to  borrow  money,  the  tes- 
tator agreed  to  let  him  have  it,  but  told 
him  that  he  should  exi)ect  the  same  in- 
terest which  he  received  in  the  short 
annuities,  namely  8ji)ercent.  and  which, 
being  assented  to,  it  was  agreed  that  tlie 
money  should  be  raised  by  a  sale  of 
short  annuities,  to  the  amount  of  900/., 
which  the  defendant  was  to  replace,  in 
the  same  stock,  by  the  first  of  September, 
1785  ;  but  if  it  were  not  re])laced  by  that 
time  he  was  then  to  repay  that  sum  on 
the  first  of  January,  1786,  and  in  the 
meantime  to  jiay  such  interest  as  the 
stock  would  have  produced.  The  jury 
having  found  that  the  transaction  was 
an  honest  loan  of  stock,  the  court  re- 
fused to  disturb  the  verdict.  Ashhurst. 
J.,  said,  "  The  question  is,  whether  this 
transaction  was  merely  colorable,  and 
intended  as  a  loan  of  money,  ni>on  which 
usurious  interest  was  to  be  taken,  or  a 
loan  of  stock.  It  appeared  from  the 
evidence  that  in  substance  this  was  a' 
loan  of  stock.  The  agreement  was,  that 
the  defendant  should  have  the  use  of 
the  money,  which  was  the  produce  of 
tlie  stock,  paying  the  same  interest  which 
the  stock  would  have  ]iiO(Iiiccd,  with 
liberty  to  replace  the  stock  on  a  certain 
day,  till  whicii  time  the  lender  was  to 
run  tiic  risk  of  the  fall  of  tlie  stocks ; 
but  he  stipulated  that,  if  it  were  not  re- 
])laced  by  tliat  time,  he  would  not  run 
that  risk  any  longer,  but  would  lie  re- 
paid the  sum  atlvanccd  at  all  events. 
And  from  tiiis  contract  he  derived  no 
advantage,  for  he  was  only  to  receive  in 
the  meantime  the  same  interest  wliieh 
the  stock  would  have  produced.  Now 
though  this  might  iiave  l)een  used  as  a 


CH.  VI. 


or   INTEREST   AND   USURY. 


389 


So  one  may  lend  stock  to  be  replaced;  (d)  or,  he  may  lend 
the  price  which  it  is  sold  for ;  or  he  may  give  the  borrower 
the  option,  either  to  replace  the  stock  or  repay  the  money, 
with  interest;  but  if  he  reserves  this  option  to  himself  it  is 
held  to  be  usurious,  (e)  The  lender  may  lend  stock,  and 
reserve  by  way  of  interest,  the  dividends  which  would  be 
paid  on  it,  whatever  they  may  be,  provided  he  agrees  at  the 


color  for  usury,  it  was  a  question  for 
the  consideration  of  the  jury,  and  they 
have  negatived  it." 

(d)  Forrest  v.  Elwes,  4  Ves.  492.  In 
this  case  8,000/.  old  South  Sea  annuities 
were  loaned,  the  value  at  the  time  being 
7,1 70/.,  and  a  bond  given  by  the  borrower 
to  replace  the  stock  in  si.x  months,  and 
in  the  meantime  to  pay  lawful  interest 
on  7.1 70/.  It  was  contended  that  the  bond 
was,  upon  the  face  of  it,  a  usurious  con- 
tract ;  but  the  point  was  afterwards 
given  up,  and  the  Master  of  the  Rolls 
decreed  the  bond  good. 

(c)  Barnard  v.  Young,  17  Ves.  44.  In 
this  case  8,500/.  East  India  Stock  was 
transferred,  as  security  for  the  perform- 
ance of  an  agreement  that  16,096/.  of 
the  three  per  cents,  which  was  tlie  amount 
of  three  per  cents  that  10,000/.  would 
have  purchased  at  the  date  when  a  debt 
for  10.000/.  had  become  due  from  the 
plaintiffs  to  the  defendant,  should  be 
transferred  to  the  defendant  on  the  30th 
of  the  next  September,  or  that  the  debt 
of  10,000/.  should  be  paid,  at  the  de- 
fendant's option,  and  that  in  either  ease 
five  per  cent,  interest  upon  the  10.000/. 
should  1)C  paid  to  the  defendant.  Upon 
a  bill  filed  to  have  the.assignment  of  the 
East  India  Stock  produced,  Sir  William 
Grant,  M.  R.,  said  that  the  contract  was 
usurious,  as  it  reserved  the  capital,  with 
legal  interest  upon  it,  and  likewise  a  con- 
tingent ad  vantage,  without  putting  either 
capital  or  interest  in  any  kind  of  risk. 
The  lender  was  to  have,  at  liis  election, 
his  principal  and  interest,  or  lo  have  a 
given  quantity  of  stock  transferred  to 
him.  Tliis  principal  never  was  at  any 
hazard,  as  he  was  at  all  events  sure  of 
having  that  with  legal  interest,  and  had 
the  chance  of  an  advantage  if  the  stock 
rose.  It  was  usurious  to  stipulate  for  that 
chance,  and  the  contract  was  therefore, 
in  fact,  a  usurious  contract.  In  Wliite  r. 
Wright,  3  B.  &  Cr.  273,  White  sold  out 
400/.  stock,  in  the  three  per  cent,  con- 
solidated bank  annuities,  for  223/.,  which 

33* 


he  loaned  to  the  defendant,  who  executed 
an  agreement  that  after  one  year  she 
would,  if  requested,  transfer  to  White 
400/.  like  stock,  and  would  in  the  mean- 
time pay  all  dividends  which  the  stock 
would  produce.  The  defendant  also 
executed  a  bond  to  AVhite,  conditioned 
for  the  payment  of  223/.  and  interest,  to 
him,  on  a  certain  date.  The  present 
action  was  brought  upon  the  agreement 
to  transfer  the  stock.  Abbott,  C.  J.,  said,' 
"  Here  if  the  lender,  after  receiving  five 
perc^ent-  interest  on  his  money,  had  after- 
wards, on  a  rise  in  the  stocks,  compelled 
the  defendant  to  replace  the  stock  sold, 
he  would  have  had  principal,  interest, 
and  a  premium  besides.  That  is  an  ad- 
vantage which  by  law  he  was  not  en- 
titled to  contract  for.  The  contract  was 
therefore  usurious."  Baylei/,  J  ,  said,  "A 
party  may  lawfully  lend  stock  as  stock 
to  be  replaced,  or  he  may  lend  the  pro- 
duce of  it  as  money,  or  he  may  give  the 
borrower  the  option  to  repay  it,  either 
in  the  one  way  or  the  other.  But  he 
cannot  legally  reserve  to  himself  a  right 
to  determine,  in  future,  which  it  shall  be. 
It  is  not  illegal  to  reserve  the  dividends, 
by  way  of  interest  for  stock  lent, 
although  they  may  amount  to  more  than 
5/.  per  cent,  on  the  produce  of  it ;  for  the 
price  of  stock  may  fall,  and  then  the 
borrower  would  be  a  gainer ;  but  the 
option  must  be  made  at  the  time  of  the 
loan.  The  instruments  set  out  in  this 
case  show  that  an  option  to  be  exercised 
in  future  was  reserved."  And  the  court 
ordered  a  nonsuit.  In  Chippindale  v. 
Thurston,  1  M.  &  Mai.  411,  500/.  was 
loaned,  and  the  borrower  agreed  to  re- 
pay it  in  three  per  cent,  consols,  at  a 
price  not  exceeding  68^  per  cent.,  or  to 
repay  it  in  Bank  of  England  notes  upon 
six  months'  notice.  The  court  ordered 
a  nonsuit,  on  the  ground  that  the  option 
was  with  the  lender,  and  the  con- 
tract tlicrcfore  clearly  usurious,  as  he 
could  not  have  less  than  five  per  cent, 
interest,  and  might  have  more  than  the 
500/.  lent,  if  the  funds  rose  above  68^-. 


390 


THE    LAW   OF   CONTRACTS. 


[part   II. 


time  of  the  loan  to  take  them ;  (/)  for  they  may  be  more  or 
less  than  the  interest ;  but  he  cannot  contract  that  he  shall 
have  them,  if  more  than  the  interest,  and  otherwise  the  in- 
terest. 

If  a  contract  be  in  part  for  usurious  interest,  and  it  is  made 
by  two  instruments,  one  promising  to  pay  the  principal,  with 
or  without  lawful  interest,  and  the  other  promising  to  pay  the 
usurious  interest  as  a  principal,  with  or  without  interest,  it 
would  seem  that  it  is  not  this  last  promise  alone  which  is 
void,  but  both,  because  both  together  form  one  contract, 
which  is  tainted  with  usury,  (g-)  So,  if  there  be  a  note,  and 
a  separate  oral  promise  to  pay  usurious  interest,  the  note  is 
void.  (h).  The  authorities  differ  on  this  point,  but  the  pre- 
vailing rule  is,  that  if  the  design  of  the  whole  transaction, 
and  the  inducement  to  it,  are  to  lend  money  on  usurious  in- 
terest, the  taint  of  usury  affects  the  whole  and  every  part  of 
the  contract,  and  no  one  portion  thereof,  although  in  form 
an  independent  contract,  is  made  valid  by  the  fact  that  taken 
by  itself  it  is  free  from  objection.     The  very  fraud  consists 


(/)  Bayleif,  J.,  White  v.  Wright,  3  B. 
&  Cr.  278.  in  note  (e)  supra.  See.  also 
Potter  v:  Yale  College,  8  Conn.  52. 

((j)  In  Roberts  v.  Trenayne,  Cro.  Jac. 
507;  Mary  Addingtou  loaned  Cory  150/., 
and  for  security  of  its  repayment  Cory 
leased  to  Mary  Addington  a  close  for 
sixty  years,  conditioned  to  become  void 
if  he  jiaiu  tlic  150/.  within  two  years.  It 
was  then  further  agreed  that  Cory 
should  give  to  Mary  Addington  annual 
interest  of  twenty-two  pounds  ten  shil- 
lings, by  means  of  a  grant,  by  line,  of 
a  rent  charge,  which  was  done.  Cory 
afterwards  granted  the  inheritance  to  the 
plaintiff,  who  brought  this  action  of  tres- 
pass against  the  defendant,  husband 
of  Mary  AdJington.  "  It  was  moved, 
whether  this  lease,  being  taken  for  the 
payment  of  the  principal  money,  and 
not  for  the  payment  of  any  part  of  the 
usury,  be  witliin  tlie  statute,  to  make 
the  bargain  void '?  —  It  was  resolved, 
that  it  is  ;  because  it  is  for  the  security 
of  money  lent  upon  interest,  and  for 
the  securing  of  that  which  the  statute 
intentls  he  should  lose  ;  for  otherwise  it 
would  be  an  evasion  out  of  the  statute, 
that  he  would  jirovidc  for  the  securing 
of  the  payment  of  the  principal,  what- 


soever usurious  bargain  was  made,  which 
the  law  will  not  permit."  In  White  v. 
Wright,  3  B.  &  Cr.  273  ;  ante,  p.  389, 
n.  (e)  White  loaned  the  defendant  400/. 
stock,  and  received  an  agreement  to  re- 
transfer  400/.  like  stock,  and  in  the  mean- 
time pay  the  dividends  the  stock  would 
earn.  By  another  agreement  the  de- 
fendant agreed  absolutely  to  jjay  223/. 
and  interest,  to  the  plaintiff,  on  a  certain 
day.  This  action  was  brought  upon  the 
first  agreement  to  re-transfer  the  stock. 
The  first  agreement,  although  lawful  in 
itself,  was  held,  upon  the  authority  of 
Kobcrls  I'.  Trenayne,  to  be  vitiati'd  by 
the  other  bond  for  the  payment  of  illegal 
interest.  To  the  same  effect  are  Mottc 
V.  Dorrell,  1  McCord,  350;  Clark  v. 
Badgley,  3  Halst.  233;  Postlethwait  ?\ 
Garrett,  3  Monroe,  345;  Fitch  v.  Ham- 
lin, 1  Hoot,  110;  Swartwout  i-.  Payne, 
19  Joints.  294;  Gray's  Exrs.  r.  Brown, 
22  Ala.  273. 

(/i)  JSIerrills  v.  Law,  9  Cow.  G5  ;  Ma- 
comber  i'.  Durham,  8  Wend.  550;  Ham- 
mond V.  Hopping,  13  Wend.  505  ;  Will- 
ard  i\  Uecder,  2  McCord,  3(19  ;  Ijcar  v. 
Yarnci,  3  A.  K.  Marsh.  419  ;  Atwood 
V.  Whiitlesev,  2  Hoot,  37  ;  contra,  But- 
tcrlield  v.  Kidder,  8  Pick.  512. 


en.  VI.]  OF  INTEREST  AND  USUHY.  391 

in  disguising  usury,  by  separating  the  contract  into  these 
parts,  (i)  The  common  way  in  which,  in  our  mercantile 
cities,  the  usury  laws  are  now  evaded,  we  suppose  to  be 
this  ;  a  valid  bargain  is  made  for  the  payment  of  the  money 
with  interest.  The  additional  bonus  or  premium  is  left  en- 
tirely at  the  pleasure  of  the  borrower,  with  the  understanding 
that  the  worth  of  money  at  that  time  is  a  certain  per  cent. 
Then  there  is  no  contract  which  is  not  legal ;  if  when  the 
money  is  due,  nothing  but  simple  interest  is  paid,  nothing 
more  can  be  demanded  by  any  contract,  and  the  lender  trusts 
to  the  fact  that  a  borrower,  who  thus  executes  only  his  con- 
tract, would  not  be  able  to  borrow  more.  But  if  this  under- 
standing assumes  distinctness  enough  to  become  a  contract 
for  the  repayment  of  additional  interest,  we  are  satisfied  that 
the  penalties  of  the  usury  law  would  attach  to  it.  The  diffi- 
culty of  distinguishing  between  a  mere  understanding  and  a 
promise  might  often  be  great.  If  money  was  actually  paid 
for  the  use  of  the  sum  loaned,  over  and  above  the  lawful 
interest,  a  similar  question  would  arise,  whether  it  was  paid 
in  pursuance  of  a  contract  to  pay,  so  that  the  penalty  would 
be  incurred ;  or  whether  it  was  a  mere  gratuity.  The  rule 
of  law  must  be,  that  if  A.  lends  to  B.  a  sum  for  a  given  time, 
on  simple  interest,  and  B.,  on  paying  this  money,  manifests 
his  gratitude  for  the  accommodation  by  a  free  gift  to  A. 
either  of  money  or  a  chattel,  there  is  no  usury  in  this  ;  but  if 
the  money  is  paid,  or  a  chattel  given,  in  performance  of  a 
previous  promise  to  pay,  then  the  penalty  of  usury  must 
attach  ;  and  in  each  case  it  must  be  a  question  of  fact 
whether  the  payment  is  in  the  nature  of  a  gift,  or  of  the 
execution  of  a  promise. 

It  should  be  remarked,  that  if  a  foreign  contract  provides 
for  interest  which  is  law^ful  where  the  contract  is  made,  it 
will  not  be  declared  void  for  usury  in  a  State  in  which  only 
a  less  interest  is  allowed  by  law.  {j)     But  if  a  usurious  con- 

(j)  Ibid;  Warren  I'.  Crabtrcc,  1  Grccnl.  this  subject,  ante,  p.  97,  n.  (c).     Nichols 

171.  V.    Cosset,    1    Root,  294  ;   M' Queen   v. 

{j)lhivvQjv.   Archbold,  3  B.  &  Cr.  Burns,  1   Hawks,  476 ;  M'Guire  v.  Par- 

626  ;  Thompson  v.  Powles,  2  Sim.  211  ;  ker's  Exrs.  1  Wash.  369  ;  Kobb  ;;.  Hai- 

DeWolt   V.  Johnson,  10   Wheat.    367;  sey,  11  Sm.  &  M.  141.     Sec  also  Gale 

Chapman   v.  Robertson,  6  Paige,  627;  v.    Eastman,    7    ]\[etc.    14;    Jacks   v. 

Pratt  V.  Adams,  7  Paige,  615."  See  on  Nicliols,  1  Selden,  178;  Davis  v.  Garr. 


392 


THE   LAW    OF    CONTRACTS. 


[part  II. 


tract  is  made  in  a  State  in  which  it  is  wholly  void,  because 
of  such  usury,  it  cannot  be  recognized  in  another  State  in 
which  the  penalty  is  a  forfeiture  of  a  part  only,  and  enforced 
there  for  all  but  this  part,  {k) 


SECTION  IV. 
THE    CONTRACT   ITSELF   MUST   BE   TAINTED    WITH   THE   USURY. 

In  order  that  a  contract  or  debt  should  be  avoided  as 
usurious,  it  is  necessary  that  it  should  itself  be  tainted  with 
this  offence  ;  for  if  any  subsequent  contract  in  payment  of 
the  first  be  usurious,  this  second  contract  will  be  void,  and 
will  therefore  leave  the  original  contract  or  debt  wholly  un- 
paid, and  it  may  enforced  as  if  the  second  had  not  been 
made.  (/)     Thus,  if  one  who,  as  joint  surety,  has  paid  the 


•2  Seld.  134  ;  Turpin  v.  Povall,  8  Leigh, 
93. 

\k)  Houghton  V.  Page,  2  N.  II.  42. 

(/)  Radley  i'.  Manning,  3  Keb.  142, 
pi.  13.  "  In  debt  upon  an  obligation, 
upon  over  the  condition  was  to  pay  by  a 
certain  day.  The  defendant  pleaded  tiie 
statute,  12  Car.  2,  and  said  that  the  con- 
tract was  usurious,  but  joe?-  curiam,  being 
made  after  the  bond  forfeited  to  receive 
interest,  according  to  the  penalty,  which 
was  double  the  principal,  it  doth  not 
void  the  obligation  that  was  good  at 
first,  but  only  subjects  tlie  taker  to  other 
penalties,  and  judgment  for  the  plain- 
tiff." In  Anonymous,  1  Bulstrode,  17, 
T.  N.  executed  "to  J.  P.  a  bond  for  66/. 
6d.  principal,  and  6/.  legal  interest,  pay- 
able in  one  year.  Within  the  year  the 
obligor  paid  the  6/.  interest  and  after- 
wards an  action  being  brought  for  the 
non-])aymentof  the  ])rincipal  tlie  obligor 
pleaded  the  statute  of  usury,  because  the 
obligee  took  the  use  money  within  the 
year.  "  It  was  resolved  l)y  the  wliole 
court,  that  his  taking  of  tlie  use  money 
within  the  year  shall  not  avoid  the  obli- 
gation, and  tiiat  tliis  taking  is  no  usury 
within  tiie  statute  "  Wllliaims,  Justice, 
"  Where  the  first  contract  is  not  usurious, 
this  shall  never  be  made  usury,  within 
the  statute.  i)y  m:niQY  ex  post  furto ;  as  if 
one  contract  with  another  to  i)orro\v 
100/.   for  a  year,  and  to  give  him  10/. 


for  interest,  at  the  end  of  the  year,  if  he 
pays  the  interest  within  the  year,  this  is 
not  usury  within  the  statute,  to  avoid 
the  obligation,  or  to  give  a  forfeiture  of 
the  money  within  the  statute,  because 
that  this  contract  was  not  usurious  at 
the  beginning;  which  was  agreed  by  the 
whole  court,  and  judgment  given  for 
the  plaintifl'."'  In  Pollard  v.  Scholy, 
Cro.  Eliz.  20,  Pollard  sold  defendant  two 
oxen,  for  six  pounds  six  shillings  and 
eight  pence,  to  be  paid  at  All  Saints 
next,  and  on  the  same  day  tiic  defend- 
ant required  longer  day  of  ]iayment, 
upon  which  Pollard  gave  him  till  the 
first  of  May  next,  receiving  therefore 
three  quarters  of  wheat,  wliicli  was  above 
the  value  of  ten  pounds  per  cent,  upon 
the  debt.  In  debt  for  tlie  price  of  the 
oxen,  usury  was  set  up  as  a  defence. 
The  opinion  of  the  justices  was  that 
the  last  contract  was  void,  but  the 
first  good,  being  made  ioiia  fide.  Fer- 
rall  V.  Shaen,  1  Saund.  294*,  was  debt 
upon  a  bond,  for  payment  of  SOOl.,  to 
which  the  defendant  jjlcadcd  that  the 
jdaintiiy  hail  rc(;eivcd  •'U)/.  for  delaying 
the  day  of  payment  of  tlie  bond  one 
year,  wiiich  was  usurious.  The  court 
a<ljudged  the  plea  not  good,  for  here  the 
bond  was  good  when  it  was  made,  and 
tlien  a  usurious  contract  afterwards  can- 
not make  it  void,  altiiougli  tiie  jienalty 
for  usury  was  incurred.     In  Nichols  v. 


en.  VI.] 


OF  INTEREST  AND  USURY. 


393 


whole  of  a  debt,  and  so  acquired  a  claim  for  contribution  for 
one  half,  settles  this  claim  by  receiving  a  note  with  usurious 
interest,  this  note  cannot  be  collected,  but  the  original  claim 
for  contribution  revives  and  may  be  enforced,  (m)  So  an 
agreement  to  pay  more  than  interest,  by  way  of  penalty  for 
not  paying  the  debt,  is  not  usurious,  because  the  debtor  may 
relieve  himself  by  paying  the  debt  with  lawful  interest,  and 
even  if  he  incurs  the  penalty,  this  may  be  reduced  to  the  actual 
debt,  (w)     And  if  money  be  due,  and  the  creditor,  at  the  re- 


Lee,  3  Anstr.  940,  where  to  debt  upoa 
a  bond,  the  plea  was,  that  after  the  exe- 
cution of  the  bond  the  plaintiff  received 
from  the  defendant  more  than  lawful 
interest,  Macdonald,  C.  B.,  said :  "  There 
is  nothing  more  settled  than  this  point  ; 
to  avoid  a  security  as  usurious,  you 
must  show  that  the  agreement  was  ille- 
gal from  its  origin."  The  same  princi- 
ple is  established  in  the  following  cases  : 
Ballard  v.  Oddey,  2  Mod.  307  ;  Parr  v. 
Eliason,  1  East,  92  ;  Rex  v.  Allen,  T. 
Raym.  196  ;  Parker  v.  Rarasbottom,  3 
B.  &  Cr.  257  ;  Supra,  n.  (b) ;  Phillips  v. 
Cockayne,  3  Camp.  119  ;  Gray  v.  Fow- 
ler, 1  H.  Bl.  462  ;  Daniel  v.  Cartony,  1 
Esp.  274  ;  Buller,  J.,  Tate  v.  Wcllings, 
3  T.  R.  532;  Bush  v.  Livingston,  2 
Gaines's  cases,  66  ;  Nichols  v.  Pearson,  7 
Pet.  107  ;  Pollard  v.  Baylors,  6  Munf. 
433 ;  lioane,  J.,  Pollard  v.  Baylor,  4 
Hen.  &.  Munf.  232  ;  Merrills  v.  Law,  9 
Cow.  65  ;  Hughes  v.  Wheeler,  8  Cow. 
77 ;  Rice  v.  Welling,  5  Wend.  597 ; 
Swartwout  v.  Payne,  19  Johns.  294; 
Crane  v.  Hubbel,  7  Paige,  417  ;  Brown 
V.  Dewey,  1  Sandf.  Ch.  57  ;  Johnson,  J., 
in  Gi\ither  r.  Farmers  and  Mechanics 
Bank,  1  Pet.  43 ;  Gardner  v.  Flagg,  8 
Mass.  101  ;  Parker,  C.  J.,  Frye  v.  Bar- 
ker, 1  Pick.  267  ;  Edgell  v.  Stanford,  6 
Verm.  551  ;  Hammond  i\  Smith,  17 
Verm.  231  ;  Sloan  v.  Sommers,  2  Green, 
{N.  Jer.)  510;  Ruffin,  J.,  Collier  v.  Ne- 
vill,  3  Dev.  32  ;  Indianapolis  Ins.  Co. 
V.  Brown,  6  Blackf.  378;  Varick  v. 
Crane,  3  Green's  Ch.  128;  Brown  v. 
Toell's  Admr.,  5  Rand.  543.  See  also 
Abrahams  v.  Bunn,  4  Burr.  2253. 

(w)  Johnson  v.  Johnson,  II  Mass. 
350. 

(n)  Burton's  case,  5  Co.  69;  Vin. 
Abr.  Usury,  C.  "  If  a  man  obliges  him- 
self in  nine  marks,  to  pay  at  a  certain 
day,  and  that  if  he  does  not  pay  at  the 
day,  ■  he   obliges  himself  by  the  same 


deed  to  pay  to  him  seventeen  marks ;  this 
is  not  usury,  but  it  is  only  a  pain.  26 
E.  3,  71."  In  Roberts  v.  Trenayne,  Cro. 
Jac.  507,  Docleridf/e,  J.,  took  this  dif- 
ference in  cases  of  casual  usury  :  "If  I 
secure  both  interest  and  principal,  if  it 
be  at  the  will  of  the  party  who  is  to  pay 
it,  it  is  no  usury  ;  as  if  I  lend  to  one  a 
hundred  pounds  for  two  years,  to  pay 
for  the  loan  thereof  thirty  pounds,  and  if 
he  pay  the  principal  at  the  year's  end, 
he  shall  pay  nothing  for  interest,  this  is 
not  usury,  for  the  party  hath  his  election ; 
and  may  pay  it  at  the  first  year's  end, 
and  so  discharge  himself."  In  Garret 
V.  Foote,  Comb.  133,  Holt  said,  '•  If  I 
covenant  to  pay  100/.  a  year  hence, 
and  if  1  do  not  pay  it  to  pay  20/.,  it  is 
not  usury,  but  only  in  the  nature  of  a 
nomine  panceP  In  Groves  v.  Graves, 
1  Wash.  1,  there  was  an  agreement, for 
the  payment  of  a  debt,  by  the  delivery 
of  certificates  of  "  Pierce's  final  settle- 
ments," at  the  rate  of  twenty  shillings 
for  every  twenty-six  pence  of  the  money 
advanced,  and  if  the  debt  was  not  paid 
at  a  certain  time,  that  the  certificates 
should  be  paid  at  the  rate  of  twenty 
shillings  for  every  thirteen  pence. 
The- President  held  that  the  agreement 
to  pay  certificates  at  half  their  value, 
was  a  penalty  only,  and  the  contract 
therefore  not  usurious.  In  Winslow  v. 
Dawson,  1  Wash.  118,  a  debt  for  200/. 
being  due,  two  bonds  were  executed, 
one  for  100/.  the  other  for  150/.  at  a 
certain  time,  to  whit-h  latter  bond  a 
memorandum  was  afhxcd  that  it  might 
be  discharged  by  the  payment  of  100/., 
if  paid  at  an  earlier  date  than  the  time 
mentioned  in  the  cond'ition.  The  con- 
tract was  held  not  usurious.  The  Pre- 
sident said,  "  The  case  of  Groves  v. 
Graves,  in  this  court,  has  decided  this 
principle,  viz. :  that  such  a  contract,  to 
pay  a  larger  sum  ata/uture  day,  is  uot 


394 


THE   LAAV   OF   CONTRACTS. 


[part  II. 


quest  of  the  debtor,  agrees  to  give  him  time,  on  condition 
that  the  debtor  shall  continue  to  pay  legal  interest,  and  also 
such  further  interest  as  the  creditor  may  be  obliged  to  pay 
for  money  to  be  raised  by  him  to  take  the  place  of  the  money 
due  from  the  debtor,  such  agreement  is  not  usurious  ;  and 
if  the  debtor  pay  such  extra  interest,  he  cannot  recover  it 
back  as  a  usurious  payment,  (u)  Nor  will  the  taking  of 
usurious  interest  imply  conclusively  a  prior  agreement  to 
take  ;  as  if  a  bond  be  given  for  principal  and  lawful  interest, 
if  usurious  interest  be  taken  afterwards,  this  does  not  prove 
conclusively  that  such  was  the  secret  original  agreement ;  (/?) 
althougii  it  is  prima  facie  evidence,  (q)  But  by  some  author- 
ities the  presumption  is  only  of  an  intentional  new  usurious 
contract  at  the  time  of  payment,  (r) 


SECTION  V. 

substituted  securities  are  void. 

If  the  statute  of  usury  provides  that  a  usurious  contract  is 
void,  then  no  subsequent  circumstance  can  make  the  original 
contract  good ;  and  consequently  a  promissory  negotiable 
note,  void  at  its  inception  for  usury,  is  equally  void  in  the 
hands  of  innocent  indorsees.  (.<>) 


usurious ;  but  that  the  increased  sum 
shall  be  considered  as  a  penalty  against 
which  a  court  of"  equity  ought  to  relieve, 
upon  compensation  being  made."  See 
also  Cutler  r.  How,  8  Mass.  257  ;  Pol- 
lard V.  Bavlors,  6  Munf.  43.3  ;  Roane,  J., 
Pollard  r.  Baylor,  4  Hen.  &  Munf.  232  ; 
Brock  V.  Tiiompson,  1  Bailey,  322  ; 
Campbell  v.  Shields,  6  Leigh,  517  ; 
Fleming,  J.,  Call  v.  Scott,  4  Call,'  409  ; 
Moore'  v.  Ilylton,  1  Dew.  Eq.  429 ; 
Brockway  v.  Clark,  G  Ham.  45;  Wight 
V.  Shuck,  1  Morris,  425;  Shuck  v. 
Wight,  1  Green,  (Iowa,)  128;  Gambril 
V.  liose,  8  Blackf.  140 ;  Lawrence  v. 
Cowles,  13  111.  577  ;  Thompson  ?;.  Jones, 
1  Stewart,  5G4  ;  Long  v.  Storic,  10  E.  L. 
&  E.  182;  Floycr  v.  Edwards,  Cowp. 
112. 

(o)  Kimball  v.  Proprietors  of  Boston 
Athaiieum.  Decided  by  S.  J.  C.  of 
Miissaehussctts,  iu  March,   1855.     The 


main  ground  of  the  decision  was.  that 
the  gist  of  all  the  usury  laws,  from  1641 
to  184(5,  is  tiie  taking  of  unlawful  pro- 
fits ;  whereas  here  there  is  no  taking  of 
any  profit,  by  the  creditor,  who  is,  in  fiiet, 
the  agent  of  the  debtor  for  raising  the 
money. 

(/))  Fussil  V.  Brookes,  2  Carr.  &  P. 
318  ;  Hammond  r.  Smith,  17  Verm.  231. 

(7)  Ferrall  v.  Sbaen,  1  Saund.  295, 
note;  New  York  Firemen  Ins.  Co.  v. 
Ely,  2  Cow.  705;  Cimimius  v.  Wise,  2 
Halstead's  Ch.  73  ;  Varick  v.  Crane,  3 
Green's  Ch.  128;  Quarlcsr.  Brannon,  .5 
Strobh.  151.  • 

(r)  Hammond  v.  Smith,  17  Verm.  231. 

(.•!)  Lowe  r.  Waller,  Doug.  73G,  supra, 
2386, n.  ((r) ;  Ackland  r.  Pearce,  2  Camp. 
599;  Young  v.  Wrigiit,  1  Camp.  139; 
Wilkic  r.  lloosevclt,  3  Jolms.  Cas.  66; 
Ilacklcy  v.  Spraguc,  10  Wend.  113; 
Lloyd  iJ.  Scott,  4  Pet.  228;  Chadbourn 


CH.  VI.]  OF  INTEREST  AND  USURY,  395 

Whether  a  note,  valid  in  its  inception,  but  usuriously 
transferred  by  the  payee  or  indorsee,  is  valid  against  the 
maker,  has  been  variously  decided.  (/)  And  the  authorities 
differ  on  the  question  whether  such  a  note  is  valid  as  against 
the  maker  in  the  hands  of  the  usurious  indorsee  himself;  the 
objection  being,  that  no  rights  can  grow  out  of  an  illegal,  and 
therefore,  invalid  transaction,  (u)  There  are,  however,  cases 
of  high  authority  which  hold  that  the  maker  is  liable  to  the 
indorsee,  even  if  the  indorser  be  not  so  liable,  on  the  ground 
that  the  indorsement  operates  as  an  executed  transfer  of  the 
property  in  the  note,  and  does  not  remain  executory,  like  the 
indorser's  general  liability  to  pay  the  note,  on  the  maker's 
default,  (y)  In  the  section  on  the  sale  of  notes,  we  shall 
consider  this  question,  and  give  our  reasons  for  holding  that 
where  such  a  transaction  is  a  bom  fide  sale  of  the  note,  both 
maker  and  indorser  are  held  for  the  whole  face  of  the  paper. 

To  remedy  the  hardship  imposed  upon  innocent  holders  of 
negotiable  paper,  under  the  English  construction  of  the  rule 
that  usurious  instruments  are  absolutely  void,  the  statute  of 
58  Geo.  3,  c.  93,  was  passed,  declaring  that  no  bill  or  note 
should  be  invalidated  in  the  hands  of  a  holder  for  value 
without  notice.  And  exceptions  to  the  same  effect  may  be 
found  in  some  of  the  statutes  of  usury  in  this  country,  (w) 

I-'.  Watts,  10  Mass.  121;  Bridge  r.  Hub-  v.  Mazzaredo,  1   Stark.    385,    however, 

bard,  1.5  Mass.  92  ;  Sauerwein  v.  Brun-  the  court  decided  that  usury  on  the  part 

ner,  1  Har.  &  G.  477  ;  Faris  v.  King,  1  of  a  payee  of  a  note  was  a  bar  to  an 

Stewart,  25.');  Sewall,  J.,  Chadbourn  v.  action  by  a  bona  Jlde  liolder,  because  he 

Watts,  10  Mass.  121  ;  Payne  v.  Trezc-  could  not  bring   himself  in  connection 

vant,  2  Bay, 23  ;  Gaillard  r.Le  Seigneur,  witii  the  maker,  except  through  the  me- 

1  McMuUan,  225  ;  Solomons  v.  .Jones,  dium  of  usurious  indorsement  ;  and 
3  Brev.  54;  Townsend  v.  Bush,  1  Conn,  this  case  was  approved,  in  Chapman  v. 
260.  See  also  Shober  v.  Hauser,  4  Dev.  Black,  2 B.  &  Aid.  589.  But  Bushi'.  Liv- 
&  B.  97.  It  is  otherwise  where  the  sta-  ingston,  2  Caines'sCas.  66  :  Foltz  v.  Mey, 
tute  of  usury  does  not  declare  the  con-  1  Bay,  486;  Campbell  v.  Read, Martin  & 
tract  void.  Storij,  J.,  Fleckner  v.  U.  S.  Yerg.  392,  decided  that  a  note  thus  usuri- 
Bank,  8  Wheat.  354  ;  Young  v.  Berkley,  ously  indorsed  is  valid  against  the  maker, 

2  New  Hamp.  410 ;  Creed  v.  Stevens,  4  in  the  hands  of  a  holder  in  good  fixith. 
Whart.  223;  Conkling  v.  Underbill,  3  (h)  See  Lloyd  t?.  Reach,  2  Conn.  175  ; 
Scam.  383  ;  Wells  r.  Torter,  5  B.  Mon.  Gaither  u.  Farmers  &  Mechanics  Bank, 
424;  McGiU  v.  Ware,  4  Scam.  21;  1  Pet.  44 ;  Nichols  v.  Fearson,  7  Pet. 
Tucker  u.  Wilamonicz,  3  Eng.  (Ark.)  107,  and  Freeman  v.  Brittin,  2  Har- 
157.     See  also  Turnery.  Calvert,  12  S.  rison,  191. 

&  R.  46  ;  Fenno  v.  Sayre,  3  Ala.  459.  (v)    Munn   v.    Commission    Co.    15 

(t)  Lord  Kenyon  originally  held  that  Johns.  44  ;  Collier  i\  Neville,  3  Dev,  L. 

such  holder  would  be  entitled   to  reco-  30;  Knights  v.  Putnam,  3  Pick.   184. 

ver.    Daniel  v.   Cartony,  1   Esp.  274;  See  also  Littell  w.  Hord,  Hardin,  81. 

Parr  I'.  Eliason,  1  East,'92.     In  Lowes  (w)  See  Chapman  v.  Black,  2  B.  & 


896 


THE    LAAV   OF   CONTRACTS. 


[part  II. 


But  where  the  statute  contains  such  a  provision,  and  also 
provides  as  the  penalty  for  usury,  the  deduction  in  an  action 
against  the  debtor,  of  the  excessive  interest  secured,  and  the 
indorsee  takes  it  after  it  becomes  due,  the  deduction,  it  is 
said,  may  be  made  against  him.  (x) 

But  if  such  note,  or  any  securities  for  an  usurious  debt  be 
given  up  and  cancelled,  on  the  promise  of  the  debtor  to  pay 
the  original  debt,  with  lawful  interest,  this  promise  is  valid, 
being  founded  on  a  good  consideration.  {//)  So,  also,  it  is 
true  in  general,  that  any  security  given  in  payment  or  dis- 
charge of  an  usurious  security,  is  equally  void  with  that;  (2) 


Aid.  589,  and  Hackley  v.  Spraguc,  10 
Wend.  113. 

(.)■)  Wing  V.  Duma,  24  Maine,  128. 

(ij)  Barnes  r.  Hedley,  2  Taunt.  183. 
In  tliis  case  an  agfeement  was  made  be- 
tween Webb  and  Harrie  &  Suthmier,  by 
which  Webb  was  to  advance  them  mon- 
ey to  purchase  sugars  with,  from  time  to 
time,  for  wliich  he  was  to  receive  live 
percent,  interest,  and  also  a  commission 
of  five  per  cent,  upon  all  sugars  purchas- 
ed. To  secure  tlie  repayment  of  the 
principal,  interest  and  commissions,  cer- 
tain deeds  and  securities  were  executed 
to  Webb.  Under  tliis  agreement  Webb 
made  out  four  successive  half  yearly  ac- 
counts, charging  according  to  the  agree- 
ment for  the  money  advanced;  and  va- 
rious sums  were,  from  time  to  time,  paid 
on  this  account.  The  sugars  were  not 
purchased  or  yirocured  by  Webb,  but liy 
Harrie  &  Suthmier.  in  their  own  names. 
Upon  the  ))arties  being  informed,  and 
realizing  that  tliis  transaction  was  usu- 
rious, and  that  Webb  was  in  danger  of 
losing  the  whole  of  his  money,  Webb, 
in  accordance  with  an  arrangement  then 
made,  drew  up  fresh  accounts,  deduct- 
ing all  charges  for  commission,  and 
charging  five  per  cent,  interest  only,  oil 
the  money  actually  advanced.  This  ac- 
count was  acknowledged  by  the  debtors 
to  be  correct,  and  they  promised  to  pay 
it,  whereupon  tiie  original  securities 
were  given  up,  and  the  original  agree- 
ment cancelled  and  burned.  This  ac- 
tion was  brought  upon  the  last  account 
against  the  assignees  of  Harrie  &  Suth- 
mier ;  and  the  court  held  that  it  was 
maintainable.  Sec  Wicks  v.  Gogerley, 
1  Ky.  &  Moody,  1 23. 

(~)  Preston  'v.  Jackson,  2  Stark.  332, 
was  an  action  on  a  promissory  note,  by  an 


indorsee  against  the  maker.  The  payee 
was  called,  and  tcstilied  that  he  had  lent 
the  defendant  100/.,  for  which  he  was  to 
receive  .50/.,  by  way  of  interest,  and  took 
his  bond  for  1.50/.  That  he  afterwards 
lent  100/.  more  upon  the  same  terms, 
and  that  in  August,  1814,  the  former  se- 
curities were  given  up,  and  the  note  sued 
upon,  given  for  the  interest.  Hoiroyd, 
J.,  held  the  note  void.  In  Pickering  v. 
Banks,  Forrest's  Reps.  72,  the  defendant 
had  given  the  plaintiff  bills  for  a  usuri- 
ous consideration,  some  of  which  he  had 
paid ;  the  remainder  not  being  dis- 
charged when  they  became  due,  the  de- 
fendant gave  a  warrant  of  attorney  for 
the  balance,  on  which  the  plaintiff  had 
entered  up  judgment.  Macdonnld,  C. 
B.,  ordered  the  judgment  to  besctasidc 
and  the  warrant  of  attorney  to  be  deliv- 
ered up.  In  Chairman  v.  Black,  2  B.  & 
Aid.  589,  a  bill  of  exchange  was  in  the 
hands  of  the  plaintiff,  which  had  been 
nsuriously  indorsed  by  a  prior  party. 
Ujwn  being  informed  of  this,  the  plain- 
tiff" procured  a  new  bill  to  be  accej)ted 
by  the  defendant,  in  wliich  the  usuri- 
ous indorser  was  omitted.  The  pres- 
ent action  was  brought  upon  the  last 
bill,  and  Abbott,  C.  J-,  delivered  the  opin- 
ion of  tlic  court,  that  the  l)ill  was  void. 
In  Bridge  v.  Hubbard,  15  Mass.  96, 
Blanchard  &  Pord,  the  makers  of  a  note 
void  for  usury,  being  called  on  for  pay- 
ment, asked  for  a  longer  credit,  which 
was  given  on  condition  that  otiier  se- 
curity should  l)e  obtained.  The  note 
sued  on  was  then  procured,  signed  by 
the  defendant,  wiio  was  liable  a.s  in- 
dorser on  the  first  note  ;  it  was  made 
jiayable  to  T.  W.  Sumner,  who  indors- 
ed it  in  blank,  under  which  indorsement 
tiie  plaintiffs  claimed.     The  court  held 


CII.  VI.] 


OF   INTEREST   AND    USURY. 


397 


But  when  a  new  and  innocent  j)arty  is  introduced  into  the 
substituted  security,  the  weight  of  authority  would  lead  to  the 
conclusion  that  such  security  is  valid  as  to  him.  (a)  And  if 
the  borrower  allows  the  usurious  claim  to  become  merged 
in  a  judgment,  it  is  then  too  late  to  take  advantage  of  the 
defence  of  usury,  (b)  But  it  is  also  true,  that  if,  in  the  bar- 
gain respecting  the  new  security,  there  is  an  agreement  to 
expunge  or  exclude,  or  an  actual  exclusion  of  the  unlawful 
interest,  the  new  security  is  valid,  (c) 


the  note  sued  upon  to  be  a  mere  substi- 
tuted contract  for  the  former  usurious 
one,  and  void  in  the  plaintiff's  hands. 
See  also,  to  the  same  effect,  Marsh  v. 
Martindale,  3  Bos.  &  Pul.  154,  and  the 
following  American  decisions  :  Walker 
V.  Bank  of  ^yashington,  3  How.  U.  S. 
62;  Powell  v.  Waters,  8  Cow.  683; 
Eeed  v.  Smith,  9  Cow.  647  ;  Tuthill  v. 
Davis,  20  Johns.  285  ;  Jackson  v.  Pack- 
ard, 6  Wend.  415 ;  Steele  v.  Whipple, 
21  Wend.  103  ;  Gibson  v.  Stearns,  3 
New  Hamp.  185;  Morcure  w.  Dermott, 
13  Peters,  45  :  Collins  v.  Roberts,  Brayt. 
235;  Swift,  C.  J.,  Scott  v.  Lewis,  2 
Conn.  135;  Botsford  v.  Sanford,  lb. 
276;  Wales  v.  Webb,  5  Conn.  154; 
Warren  v.  Crabtree,  1  Greenl.  167; 
Lowell  V.  Johnson,  14  Maine,  240  ;  Ed- 
wards V.  Skirving,  1  Brevard,  548  ; 
Dunning  r.  Merrill,  1  Clarke,  Ch.  252 ; 
Torrey  v.  Grant,  10  Sm.  &  M.  89, 
Jackson  v.  Jones,  13  Ala.  121  ;  Hazard 
V.  Smith,  21  Verm.  123;  Simpson  v. 
Fullenwider,  12  Ire.  L.  338. 

(rt)  Ellis  V.  Warnes,  Cro.  J.AC.  33, 
Yelv.  47  ;  Powell  v.  Waters,  8  Cowen, 
669 ;  Brown  v.  Waters,  2  INLiryl.  Ch. 
Dec.  201  ;  Aldrich  v.  Reynolds,  i  Barb. 
Ch.  43  ;  "Wales  v.  Webb,  5  Conn.  154. 
In  Cuthbert  r.  Haley,  8  T.  R.  390, 
Haley  procured  Plank  to  discount  cer- 
tain notes  of  his  at  a  usurious  rate. 
The  plaintiffs  received  the  notes  from 
Plank  bona  fdc,  and  tlie  defendant  being 
applied  to  by  them  for  payment,  exe- 
cuted to  them  a  bond  for  the  amount  of 
the  notes,  upon  which  bond  this  action 
was  brought.  It  was  held  that  it  could 
be  maintained.  Lord  Kenijon,  C.  J., 
said,  "  The  construction  that  has  al- 
ready been  put  on  tlie  statutes,  has  been, 
in  a  variety  of  instances,  abundantly 
hard.  The  courts  have  said,  and  rightly 
so,  tliat  the  innocent  holders  of  securities 
given  on  usurious   considerations  must 


suffer  for  the  wickedness,  or  rather  un- 
lawfulness, for  it  has  l)een  said  that 
usury  is  only  malum  prohibitum,  and  not 
malum  in  se,  of  the  original  parties  to 
the  transaction.  But  this  is  an  attempt 
to  carry  that  doctrine  much  farther  than 
any  prior  case,  and  farther  than  policy 
or  tlie  words  of  the  act  of  parliament  re- 
quire ;  and  if  it  were  to  succeed,  it  might 
affect  most  of  the  securities  in  the  king- 
dom ;  for  if  in  tracing  a  mortgage  for  a 
century  past,  it  could  be  discovered  that 
usury  had  been  committed  in  part  of  the 
transaction,  though  between  other  par- 
ties, the  consequence  would  be  that  the 
whole  would  be  void.  Il  would  be  a 
most  alarming  proposition  to  the  hold- 
ers of  all  securities.  I  admit  that  the 
securities  themselves  that  are  tainted 
with  usury  cannot  be  enforced  in  a 
court  of  justice,  even  though  they  be  in 
the  hands  of  innocent  purchasers,  for  a 
valuable  consideration,  without  notice. 

And  therefore  the  plaintiffs 

in  this  case  could  not  have  maintained 
any  action  on  the  notes  given  by  the 
defendant  to  Plank.  But  the  notes 
were  destroyed  after  they  got  into  the 
hands  of  the  plaintiffs,  and  the  bond  in 
question  M'as  given  to  tflem,  they  not 
knowing  of  the  usury  between  Plank 
and  the  defendant.  I  admit  tliat  if  one 
security  be  substituted  for  anotlier,  by  the 
parties,  in  order  to  get  rid  of  the  statute 
against  usury,  the  substituted  as  well  as 
the  original  security  will  be  void ;  but 
it  is  not  pretended  tliat  that  was  the  case 
here."  Ke})t.  C.  J.,  holds  similar  language, 
in  Jackson  v.  Henry,  10  Johns.  195. 

(6)  Thatcher  v.  Gammon,  12  Mass. 
268  ;  Thompson  v.  Berry,  3  Johns.  Ch. 
395;  S.  C.  17  Johns.  436.  See  also  Jack- 
son 1-.  Henry,  10  Jolms.  196  ;  Jackson  v. 
Bowcn,  7  Cow.  20 ;  Dav  v.  Cummings, 
19  Verm.  496.  S.  P. 

(c)  Wright  V.  Wheeler,  1  Camp.  165. 


VOL.  II. 


34 


398 


THE   LAW   OF   CONTRACTS. 


[part  n. 


Some  difficulty  may  arise  in  determining  when  the  usuri- 
ous character  of  the  original  security  shall  attach  itself  to  the 
substituted  security.  If  A.  gives  B.  an  usurious  note,  he  may 
waive  the  defence  and  pay  the  note  ;  and  if  he  pays  it  in  bank 
bills,  these  of  course  are  good  in  the  hands  of  any  honest 
holder  to  whom  B.  transfers  them.  If  A.  happens  to  have  a 
good  note  of  C.  and  gives  it  to  B.  in  payment,  is  not  this 
equally  good  in  the  hands  of  B.'s  indorsee  ?  Or  if  A.  pro- 
cures for  this  purpose  the  note  of  C.  whose  note  B.  has 
expressed  himself  willing  to  accept,  this  note  being  not  usu- 
rious in  itself,  and  C.  not  knowing  the  original  usury,  would 
not  this  note  be  good  in  the  hands  of  B.'s  indorsee,  or 
assignee  ?  We  should  say  that  it  was ;  because,  we  think,  on 
principle,  that  no  contract  should  be  held  void  for  usury,  un- 
less the  borrower,  for  usury,  was  a  party  to  it ;  or  unless  it  is 
given  as  collateral  security  for  a  present  subsisting  usurious 
contract,  (d)     It  has  been  said,  very  forcibly,  if  one  chooses 


This  was  an  action  on  a  bond  to  wliich 
usury  was  pleaded.  A  bond  iiad  been 
given  for  tlic  loan  of  money  with  lawful 
interest,  but  the  defendant  also  agreed 
to  give  plaintiff'  a  salary  of  50/.  per  year 
as  a  clerk  in  his  brewery.  It  was  not 
intended  that  the  ])laintiff  should  render 
any  service,  but  the  salary  was  a  mere 
shift  to  give  the  ])laintiff'  more  than  5.'. 
per  cent,  for  his  money.  After  one 
year's  salary  had  been  paid  under  the 
agreement,  the  parties  agreed  that  it 
siiould  be  deducted  from  the  principal, 
the  original  deed  cancelled,  and  a  fresh 
bond  taken  for  the  remaining  jn-incipal 
and  legal  interest.  This  was  done,  and 
on  the  secon^  l)ond  the  action  wns 
brought ;  Lawrence,  J.,  said,  "  The  act 
of  parliament  only  makes  void  contracts 
whereby  more  than  live  per  cent,  is  se- 
cured. The  original  contract  between 
these  parties  was  certainly  usurious, 
and  no  action  could  iiave  been  main- 
tained on  the  first  bond  ;  but  there  was 
nothing  illegal  in  the  last  bond  ;  it  was 
not  nUHle  to  assure  the  performance  of 
the  first  contract,  nor  does  it  secure 
more  tiian  live  ]ier  cent,  interest  to  the 
plaintilf.  The  parties  saw  tliey  had  be- 
fore done  wrong,  they  rectified  the  error 
they  had  committed,  and  substituted  for 
an  illegal  contract  one  that  was  per- 
fectly fair  and  legal.  I  see  no  objection 
to  their  doing  that,  and  am  therefore  of 
opinion  that  the  present 'action  is  main- 


tainable." The  principle  of  the  above 
decision  is  abundantly'  sustained  in  the 
following  American  cases :  DcWolf  v. 
Johnson,  10  Wheat.  367;  Chadbourn 
V.  Watts,  10  Mass.  121  ;  McClure  v. 
Williams,  7  Verm.  210;  Hammond  v. 
Hopping,  13  Wend.  505  ;  Miller  f.  Hull, 
4  Denio,  104;  Bank  of  JNIonroe  v.  Strong, 
1  Clarke,  Ch.  76  ;  Fowler  v.  Garret,  3  J. 
J.  IMarsh.  681  ;  Postlethwait  v.  Garret, 
3  Monr.  345 ;  Cummins  v.  Wise.  2 
Hals.  Ch.  73. 

(d)  In  Turner  v.  Hulme,  the  plaintiff 
arrested  the  maker  of  a  note  to  him, 
which  was  clearly  void  on  the  ground 
of  usury.  The  defendant  in  this  action 
rei)resented  to  the  plaintill'  that  he  could 
not  recover  on  the  note  the  considera- 
tion being  usurious,  but  the  plaintiff  re- 
fused to  liberate  the  maker  of  the  note 
unless  the  defendant  would  join  in  a 
note  to  the  amount  of  the  maktir's  debt, 
which  the  defendant  did,  and  upon 
that  note  this  action  was  brought.  It 
was  contended  that  tiie  second  note  was 
tainted  l)y  the  original  usury.  "  But 
Lord  Keiit/071,  on  this  being  re-opened, 
intimated  his  clear  opinion  to  the  con- 
trary ;  he  said  that  Banks,  when  the  first 
note  had  been  put  in  writ,  by  Turner, 
against  liiin,  sliould  have  resisted  and 
defended  himself  on  tiie  ground  of  usu- 
ry ;  but  that  the  consideration  of  that 
note  could  not  be  questioned  in  the  pre- 
sent action,  unless  it  could  be  shown 


en.  VI.]  OP  INTEREST  AND  USURY.  399 

not  to  avail  himself  of  the  defence  of  usury,  but  to  pay  a 
usurious  debt,  and  pay  it  by  delegating  a  debtor  to  him- 
self to  pay  this  debt,  it  ought  not  to  be  in  the  power  of 
this  delegated  debtor  to  insist  upon  the  original  defence, 
and  avail  himself  of  an  usury  by  which  he  was  not  affect- 
ed, (e)  So,  at  least,  it  seems  to  be  held  in  the  case  of  an 
usurious  mortgagee,  where  the  land,  subject  to  such  a  mort- 
gage, is  conveyed  to  a  third  party ;  for  the  grantee  cannot 
hold  his  land  clear  of  the  first  mortgage  debt  by  denying 
the  right  of  the  mortgagee,  on  the  ground  pf  usury.  (/)  In- 
deed it  would  seem  that  none  but  parties  or  privies  can  take 
any  advantage  of  this  defence,  or  this  defect  in  a  contract. 
For  while  a  subsequent  mortgagee  cannot  relieve  himself 
from  this  former  mortgage,  by  showing  its  usurious  nature, 
a  guarantor  of  a  debt  is  so  far  connected  with  the  contract 
that  he  may  avail  himself  of  the  defence  of  usury.  (»') 

that  this  was  a  colorable  shift  to  evade  Bosanquet,  J.,  said,  "  It  does  not  appear 

the  statute  against  usury,  devised  when  from  the  evidence  that  the  third  Ijillwas 

the  money  was  originally  lent,  and  the  given  in  substitution  of  the   second,  so 

first   note   granted."     In    Marchant  v.  as  to  be  aflccted  by  what  passed  on  the 

Dodgin,  2  M.  &   Scott,  632,  an  action  discount  of  it."     The  rule  was  refused, 

was  brought  against  the  defendants,  ac-  In    Stanley    v.    Kcmpton,    30    Maine, 

ceptors  of  a  bill  of  exchange,  drawn  by  118,   Butler  held   three   notes    against 

Taylor,  by  him  indorsed  to  Daniel,  and  Bangs,    wliich   were  usurious.      Bangs 

by  Daniel  to  plaintiff.     Taylor  testified  being  called  upon  to  pay,  procured   the 

that  certain  other  bills  had  been  accept-  defendant  to  give  the  note  in  suit,   in 

ed  by  defendant,   for   his   accommoda-  payment  of  the   three   original   notes, 

tion,  and  usuriously  discounted  by  the  which  were  given  up.     The  court  held 

plaintiff.     One  of  these  bills  being  due,  the  last  note  to  be  a  payment,  and  not 

the  bill  sued  upon  was  accepted  by   the  a   substitute   for   the  other  notes,  and 

defendants,  in  order  to  enable  Taylor,  by  therefore  valid. 

its   discount,  to   meet   the   former  bill,  (e)  JacAso;*,  J.,  Bridge  i\  Hubbard,  15 

which  he  did,  and  no  usury  was  proved  Mass  103;  Bearcer.  Barstow,  9  JIass.45. 

as  to  this  bill.     A  rule  for  setting  aside  (/)  Green   v.  Kemp,  13  Mass.  515  ; 

a  verdict  for  the  plaintiff,  being  moved  Mechanics'  Bank  ;;.  Edwards,  1  Barb, 

for,  Tindal,  L.  C  J.,  said,  "  The  bill  up-  273  ;  Sands   v.    Church,    2  Seld.    347  ; 

on  which  tiie  action  was  brought  was  not  See  also  Stoney  v.  Anier.  Life  Ins.  Co. 

a  continued  bill,  given  in  substitution  of  11  Paige,  635. 

the  former  acceptance  of  the  defendants,  (y)    Huntress   v.  Patten,   20  Maine, 

but  was  given  merely  for  the  purpose  of  28  ;  Harrison  v.  Harnel,  5  Taunt,  784; 

raising  money  to  meet  the  second  bill."  Gray's  Exrs.  v\  Brown,  22  Ala.  273. 


400 


THE  LAW   OF   CONTRACTS. 


[part  II. 


SECTION  VI. 

DISTINCTION   BETWEEN   INVALIDITY    OF   THE   CONTRACT,  AND    THE 
PENALTY   IMPOSED. 


The  law  affects  a  usurious  contract  with  two  conse- 
quences, which  should  be  discriminated.  One  is,  the  avoid- 
ance of  the  contract;  the  other  is,  the  penalty  for  the  breach 
of  the  law.  Now  the  penalty  is  not  incurred  until  u^^urious 
interest  be  in  some  way  paid  or  received ;  although  the  con- 
tract may  be  avoided  for  this  cause,  at  any  time  ;  and  it  is 
sometimes  a  very  difficult  question,  at  what  time,  or  by  what 
act,  the  usury  is  completed.  (//)     Although  an  original  con- 


(A)  Clark  v.  Bodglcy,  3  Halst.  233  ; 
Thoires  v.  Cleaves,  7  Mass.  361 ;  Oyster 
V.  Longnccker,  16  Pcnn.  274  ;  Livingston 
V.  Indianopolis  Ins.  Co.  6  Blackf.  133: 
Upson  V.  Austin,  4  Ala.  124;  Kirk- 
patrick  v.  Houston,  4  Watts  &  S.  115; 
Bank  of  U.  S.  v.  Owen,  2  Pet.  .527  ; 
Hodges  V.  Lovat,  Lotl't's  R.  .'il.  Fislier 
rjui  lam  v.  Beasley,  Doug.  23.5,  was  an 
action  of  debt,  to  recover  tiic  penalty  for 
taking  usurious  interest.  One  Grindall 
had  borrowed  100/.  of  the  defendant,  for 
which  he  liad  given  a  bond,  for  tiie  pay- 
ment of  tlie  principal  and  interest,  at  the 
rate  of  5/.  per  cent,  at  the  end  of  six 
months.  He  also  paid  two  guineas  to  the 
defendant,  as  a  premium,  at  the  time 
when  the  money  was  advanced.  At  the 
end  of  tlic  six  months  the  100/.  was  re- 
paid, and  2/,  lO.s.  for  interest.  Tliis  action 
was  l)roiight  within  a  year  after  the  pay- 
ment of  the  capital  and  interest,  but  more 
than  a  year  after  the  two  guineas  were 
paid  and  the  money  advanced,  and  the 
question  was,  wlicther  the  action  was  bar- 
red by  not  being  brought  within  a  year 
after  the  oflcncc  of  usury  was  committed. 
The  cases  of  Lloyd  v.  Williams,  2  151. 
792,  and  Mallory  ;•.  Bird,  cited  in  Cro. 
Eliz.  20,  were  referred  to,  for  the  defend- 
ant, in  which  latter  case,  it  is  said,  "If 
one  contracts  to  have  twenty  pounds  for 
the  loan  of  an  hundred  pounds,  if  lie 
takcth  notliing  of  tiic  twenty  |)Ounds  he 
is  not  jnniishable  by  the  statute,  but  if 
he  takcth  anytldng,  if  but  one  sliilling, 
this  is  an  atlirmance  of  the  contract,  and 
he  sliall  render  for  tlic  wliole  contract." 
But  Ltuller,  J.,  said,  that  the  answer  given 


by  Astor,  J.,  to  that  case,  when  it  had 
been  cited  on  some  former  occasion  was, 
tliat  it  meant  one  shilling  above  the 
legal  interest-  Lord  Mdiisjield  said,  "It 
became  material,  in  this  case,  to  deter- 
mine when  the  usury  was  complete. 
One  side  contended,  that  it  was  so  upon 
tlie  ])ayincnt  of  the  premium,  and  I  long 
inclined  to  tliat  opinion,  because  it  was 
paid  CO  nomine  as  above  legal  interest. 
Bat  I  am  now  satished,  as  we  all  arc, 
tiiat  the  oftencc  was  not  complete  till 
the  half  year's  interest  was  received. 
There  are  two  branches  of  the  statute. 
Under  the  first,  every  agreement,  con- 
tract, and  security,  for  more  than  legal 
interest,  is  void.  Therefore  the  bond 
given  to  the  defendant  in  tliis  case  was 
void.  But  under  the  second,  tlie  penalty 
is  incurred  only  by  taking,  acccptin;/,  and 
receiviiKj,  more  than  legal  interest.  All 
the  autlioritics  lean  this  way,  both  an- 
cient and  modern.  In  Lloyd  v.  Williams, 
more  than  legal  interest  had  been  paid 
at  first."  Maddock  qui  tarn  v.  Hanimett, 
7  T.  II.  184,  was  an  action  on  the  stat- 
ute, the  usury  alleged  ijeing  the  discount 
of  a  note  for  1,000/.  But  tiie  ]ioint  on 
which  the  case  turned  was.  that,  on  the 
day  when  the  note  became  due,  the 
maker  discliargcd  it  by  giving  anotiier 
note,  which  included  the  amount  due 
upon  the  first  note,  and  a  furtlier  sum 
advanced  by  the  defendants,  whicli  last 
note  was  outstanding  and  unsatisfied  at 
the  trial  of  this  case.  Biil/<i\  J.,  at  ni.ti 
prills,  was  of  llie  o]iinion  that  usury  had 
not  l)ccu  committed,  no  immdj  liaving 
been  received  by  tiie  defendant,  and  Lord 


en.  VI.] 


OF  INTEREST  AND  USURY. 


401 


tract  for  the  use  of  money   be   free  from  the  taint  of  usury, 
and  consequently  can  be  enforced,  yet  if  usurious  interest  be 


Keivjon,  C.  J.,  delivering  the  opinion  of 
tiie  court,  upon  a  motion  to  set  aside  the 
nonsuit,  said,  "  Tiic  objection  here  is, 
that  nothing  has  been  received  by  the 
defendants,  cither  for  interest  or  j)rin- 
cipal,  except  a  paper  security,  which, 
till  it  has  been  paid,  is  no  payment  what- 
ever, and  may  ultimately  turn  out  to  be 
worth  nothing.  The  plaintitf  says  that 
it  was  given  for  the  tirst  note,  which 
was  given  on  an  usurious  contract ;  if 
so,  the  second  note  is  also  bad.  But  the 
plaintiff"  cannot  be  permitted  to  con- 
tend both  ways;  that  it  is  good,  Iiecausc 
given  in  payment  of  the  first  note :  and 
bad,  because  that  first  note  for  which  it 
was  given  in  discharge  was  bad.  It  is 
true  that  a  payment,  either  in  money  or 
money's  worth,  would  be  sufficient ;  and 
it  shall  not  be  permitted  to  a  party  who 
has  knowingly  received  any  thing,  as 
interest,  to  apply  it  afterwards  to  another 
account,  as  he  finds  it  convenient.  But 
here  the  defendants  have  not  received 
anything ;  and  therefore  I  am  of  opinion 
that  the  direction  of  the  learned  judge 
at  the  trial  was  right."  In  Pearson  v. 
M'Gowran,  .3  B.  &  Cr.  700,  S.  C.  5  D.  & 
Ry.  G16,  the  venue,  in  an  action  of  debt 
for  penalties,  was  laid  in  Middlesex,  and 
the  ofi'ence  was  alleged  to  be  that  usuri- 
ous interest  was  secured  to  the  defendant, 
by  a  bill  of  exchange  accepted  and  after- 
wards paid  by  a  person  named  Bottrill. 
On  the  trial  it  appeared,  that  the  contract 
■was  made  and  the  acceptance  given  in 
Middlesex,  but  that  the  bill  was  paid  in 
London,  to  the  holders,  to  whom  the  de- 
fendant had  indorsed  it.  Abbott,  C.  J.,  de- 
livering the  opinion  of  the  court,  referred 
to  the  statute  providing  that  any  person 
taking,  accepting,  or  receiving  above  5/. 
per  cent,  interest,  should  forfeit  the  treble 
value  of  the  moneys  lent,  and  providing 
that  the  forfeiture  should  be  sued  for  in 
the  county  where  the  ofi'ence  was  com- 
mitted, and  said  (5  D.  &R.  619,)  ''Then 
the  only  question  is,  what  is  the  offence  ? 
We  think  it  consists  in  taking,  accepting, 
and  receiving  usurious  interest.  The 
corrupt  contract  precedes  and  forms  no 
part  of  the  taking,  therefore  the  ofi'ence 
here  was  not  committed  partly  in 
Middlesex  and  partly  in  London,  and 
the  only  materiality  of  the  contract  is  to 
show  the  real   nature   and   consequent 

illegality  of  the  taking Wc  arc  of 

opinion  that  the  venue  in  this  case  ought 

34* 


to  have  been  laid  in  London,  and  not  ia 
Middlesex.'"  And  in  Simpson  fjui  tarn 
V.  Warren,  15  Mass.  460,  where  the 
defendant  had  discounted  a  note  for 
$400,  at  the  rate  of  two  per  cent,  per 
month,  which  was  unpaid  at  the  time 
this  action  for  the  penalties  was  brought, 
it  was  held  that  no  usury  had  been  com- 
mitted. Parker,  C.  J.,  said,  "The  whole 
sum  loaned  was  not  paid  over,  but  the 
balance  after  deducting  the  discount,  so 
that  in  fact  400  dollars  were  never  lent, 
as  stated  in  the  declaration,  but  a  less 
sum,  for  which  the  borrower  promised 
to  pay  400  dollars,  which  was  the  prin- 
cipal lent  and  the  excessive  interest. 
The  defendant  has  then  received  nothing, 
either  principal  or  interest,  and  therefore 
he  cannot  be  liable  for  the  penalty." 
Wright  V.  Laing,  3  B.  &  Cr.  165  ;  Stevens 
V.  Lincoln,  7  Mete.  525,  are  to  the  same 
eff"ect.  See  also  Scurry  ^((i"  tarn  v.  Free- 
man, 2  B.  &  r.  381.  But  if  a  sum  more 
than  equal  to  the  legal  interest  upon  the 
sum  substantially  loaned  or  forborne,  bo 
received,  the  oft"ence  of  usury  is  com- 
plete, whether  the  principal  be  repaid  or 
not.  In  Wade  qui  tarn  v.  Wilson,  1  East, 
195,  600/.  being  due  from  G.  to  the 
defendant.  10  guineas  were  paid  by  G. 
to  the  defendant,  by  way  of  premium,  for 
the  defendant's  forbearance  for  one  year, 
and  G.  executed  his  note  to  the  defend- 
ant for  600/.  at  5/.  per  cent.  A  half  year's 
interest  of  15/.  was  afterwards  i-eceived 
by  the  defendant,  upon  the  note,  and  it 
was  held  that  upon  this  payment  usury 
was  committed.  Lord  Kent/on  said, 
"  Here  the  party  having  ten  guineas 
premium  in  hand,  and  interest  accruing 
from  day  to  day,  actually  received  inter- 
est (]ua  "interest  for  half  a  year,  which 
made  what  he  received  upon  tlie  whole, 
amount  to  more  than  lawful  interest 
for  that  time,  upon  the  sum  lent."  Law- 
rence, J.,  said,  "Here  then,  is  a  premium 
paid  of  ten  guineas,  at  first,  which  was  to 
run  through  the  whole  year,  and  interest 
accruing  daily  on  the  principal  sum,  the 
defendant  actually  received  interest  for 
the  first  half  year,  which,  together  with 
what  he  had  before  received  by  way  of 
premium,  amounts  to  more  than  legal 
interest.  That  immediately  constituted 
usury."  Lc  Blanc,  J.,  said,  "I  am  of 
opinion  that  at  least  one  moiety  of  the 
premium  is  to  be  apportioned  to  the 
half  year's  interest  which  was  received, 


402  THE   LAW   OF   CONTKACTS.  [PART   II. 

actually  paid  upon  it  afterwards,  the  penalty  is  incurred,  (i) 


and  that  the  true  spirit  of  the  afrrecmcnt 
was,tliat  tiieprcmiiimwastonin  throiij^h 
the  wliolc  year,  in  proportion  as  the  in- 
terest accrued,  and  therefore,  upon  the 
whole,  I  think  the  contract  proved 
sustains  the  count,  and  that  the  usury 
was  complete  wlien  the  first  half  year's 
interest  was  paid."  In  Lloyd  fjui  lam 
V.  Williams,  2  W.  Bl.  792,  Ilinchliire 
borrowed  100/.  for  three  months,  of  the 
defendant,  which  he  received,  #nd  paid 
the  defendant  thereout  6/.  5.s-.  by  way  of 
interest,  in  advance,  and  gave  the  defend- 
ant his  note  for  100/.  payable  in  three 
months.  De  Grey,  C.  J.,  and  BlacLstone, 
J.,  a  majority  of  the  court,  held  that  the 
oft'ence  of  usury  was  consummated  and 
completely  committed  on  making  the 
corrupt  agreement  and  receiving  the 
interest  in  advance.  In  Commonwealth 
V.  Frost,  5  Mass.  .5.3,  the  defendant  had 
loaned  money  to  Ebenezcr  Clough,  on  a 
note  forS200,  in  ninety  days,  paying  him 
$187,  having  retained  $13  for  the  ninety 
days'  interest.  At  the  expiration  of  the 
term  another  note  for  the  same  amount 
was  given,  Clough  paying  fourteen  dol- 
lars in  casli,  for  the  extension  of  the  time 
ninety  days  longer.  This  note  was  also 
renewed  for  ninety  days,  and  sixteen  dol- 
lars paid  by  Clough  on  its  renewal,  for 
the  reception  of  which  last  interest  the 
defendant  was  indicted.  The  court  said  it 
was  clear  "  that  the  taking  of  the  sixteen 
dollars,  as  the  compensation  for  the  loan, 
that  sum  exceeding  lawful  interest,  com- 
pleted the  oft'ence  of  usury,  whether  tiie 
principal  sum  was  over  paid  or  not." 
There  has,  however,  been  a  tendency  to 
consider,  in  contracts  of  this  last  nature, 
the  money  actually  received  by  the  bor- 
rower as  the  amount  of  the  loan  ;  and 
although  the  securities  given  are  for  an 
amount  sufiiciently  more  than  the  sum 
received,  to  make  the  contract  usurious, 
if  the  legal  per  cent,  of  interest  is  paid 
thereon,  not  to  consider  the  offence  of 
usury  com|)lete  until  a  payment  of  such 
interest  is  made.  This  was  the  view 
Gould.  J.,  was  inclined  to  take,  in  Lloyd 
V.  Williams,  sii/ii-a;  and  in  Scurry  v. 
Freeman,  2  B.  &  P.  ,381,  in  which'the 
defendant  lent  Itobert  llooley  500/.  upon 
security  given  for  that  amount,  who,  a 
previous  agreement  having  been  made 
that  something  more  llian  legal  interest 
should  be  paid,  init  no  particular  sum 
having  been  agreed  upon,  offered  the 
defendant  back  50/.  which  he  directed  to 


be  given  to  his  son,  the  court  (consisting 
of  Heath,  Jiouhc,  and  Chamhre,  judges) 
were  very  clearly  of  opinion  that  the  re- 
ceipt afterwards  of  25/.,  as  one  years 
interest  upon  the  debt,  was  usurious,  so 
that  an  action  under  the  statute  within 
one  year  after  its  reception  would  lie, 
inasmuch  as  the  loan  could  only  be 
deemed  a  loan  of  450/.,  since  the  defend- 
ant had  taken  back  50/.  out  of  the  500/. 
So  also  Gibson,  C,  J.,  in  Oyster  i\  Long- 
necker,  IC  Penn.  274,  says,  there  is  a 
distinction  between  interest  and  a  bonus; 
and  that  a  return  of  part  of  the  sum  on 
which  interest  is  reserved,  reduces  the 
contract  essentially  to  a  loan  of  the 
residue,  and  that  tliereforc  the  oft'ence 
of  usury  is  not  committed  until  interest 
has  actuall}'  been  jiaid  upon  the  sum  re- 
served as  the  debt.  But  the  better  opinion 
would  seem  to  be  that  such  agreements 
are  usurious  whenever  more  than  the 
legal  interest  on  what  is  understood  by 
tlie  parties  as  the  jirincipal  debt,  is  paid, 
since  the  statute  of  Anne  declares  it 
shall  be  usury  to  receive  more  than  five 
pounds  percent,  for  forbearing  or  f/iring 
dull  of  payment ;  so  that,  as  Mr.  Justice 
BlackslOHP.  remarked  in  Lloyd  v.  Wil- 
liams, "  interest  may  as  lawfully  be  re- 
ceived beforehand  hv  forbear ini/,  as  after 
the  term  is  expired,  for  luwimj  forborne  ;" 
and  if  in  either  case  more  than  five  per 
cent,  is  taken,  usury  is  committed.  See 
remarks  of  Bayley,  J.,  in  Wood  v.  Grim- 
wood,  10  B.  &  Cr.  699. 

(/)  Gardner  v.  Flagg,  8  Mass.  101  ; 
Thompson  v.  Woodbridgc,  lb.  256 ; 
Seu-uU.  J.,  Chadbourn  r.  Watts,  10  Mass. 
124.  In  Sir  WoUaston  Dixie's  case,  1 
Leon.  95,  Gent,  B.,  said,  "If I  lend  one 
a  hundred  pounds  without  any  contract 
for  interest,  and  afterwards,  at  the  end  of 
a  year,  he  gives  me  20/.  for  the  loan 
tlicreof,  the  same  is  within  the  statute, 
for  my  acceptance  makes  the  oft'ence 
without  any  bargain  or  contract."  In 
Floyer  v.  Edwards,  Cowp.  114,  Lord 
Mansfield  said,  "  In  case  tiie  argument 
originally  for  the  payment  of  principal 
be  legal,  and  the  interest  does  not  ex- 
ceed tlie  legal  rate,  but  afterwards,  upon 
payment  being  forljorne,  illegal  interest 
is  demanded,  tiicre  tiie  agreement,  by 
retros[icct,  is  not  \ok\,  but  the  jiarties 
are  liable  to  the  penalty  of  treble  value." 
See  also  Hadley  (--.  Manning,  3  Keb.  142, 
pi.  13;  Lord  Mansfield,  in  Abrahams 
V.  Bunn,4  Burr.  2253,  and  previous  note. 


en.  VI.] 


OF   INTEREST   AND    USURY. 


403 


And  if  the  usurious  interest  is  payable  at  intervals,  the  penal- 
ty is  incurred  by  the  first  payment  and  receipt;  (7)  but  it 
would  seem  that  no  more  than  one  penalty  can  be  incurred 
upon  the  same  loan,  although  further  instalments  continue 
to  be  paid,  (k) 

Where  the  statute  makes  a  usurious  contract  void,  or  for- 
feits a  part  of  the  principal  or  legal  interest,  by  way  of  penalty, 


(/)  Wade  V.  Wilson,  1  East,  195; 
Wood  V.  Grimwood,  10  B.  &  Cr.  689. 

(k)  In  Wood  V.  Grimwood,  10  B.  & 
Cr.  C9G,  in  which  a  bonus  had  been  paid, 
and  afterwards  a  lialf  year's  interest, 
•wiiicli  tof^etber  with  the  bonus  jiaid  con- 
stituted more  tlian  the  hiwful  interest, 
and  subsequently  legal  interest  was  paid 
half  yearly,  on  the  original  dcl)t,  it  was 
decided  that  the  oflence  of  usury  was 
complete  when  the  first  half  yearly  pay- 
ment was  made ;  tliat  the  bonus  was 
not  to  be  apportioned  throughout  the 
whole  time  of  the  loan.  So  that  an 
action  brought  for  ]3enaltics,  at  any  time 
within  one  year  after  the  ]:iayment  of 
any  half  year's  interest,  could  l)e  main- 
tained, as  being  in  time.  And  it  was 
doubted  whether,  even  if  such  bonus 
■was  apportionable,  the  only  offence  for 
which  the  lender  could  be  prosecuted 
had  not  been  committed  upon  the  re- 
ception of  the  first  half  year's  interest. 
Parke,  J.,  said,"  I  am  of  opinion  that  the 
moment  one  penalty  was  incurred,  upon 
one  bargain  or  loan,  no  otlier  offence 
could  be  committed  in  respect  of  the 
same  bargain  or  loan,  by  reason  of  the 
lender  having  received  a  further  sum,  by 
way  of  usurious  interest.  The  statute 
of  12  Anne,  st.  2,  c.  16,  enacts,  '  That 
all  persons  who  shall,  upon  any  contract, 
take,  accept,  and  receive,  by  way  or 
means  of  any  corrupt  bargain,  loan,  &c., 
for  the  forljcaring  or  giving  day  of  pay- 
ment for  one  wlioleyear,  of  or  for  their 
money,  above  the  sum  of  5l.  for  the 
forbearing  of  100/.  a  year,  and  so  after 
that  rate,  shall  forfeit  and  lose,  for  every 
such  offence,  the  treble  value  of  the 
moneys  lent,'  &c.  The  statute  therefore 
requires  two  things  to  constitute  the 
ofl'ence  ;  a  corrupt  bargain,  and  an  ac- 
tual taking  of  a  higher  rate  of  interest 
than  .5  per  cent,  for  forbearing  or  giving 
day  of  ])ayment  for  one  whole  year.  As 
soon  as  these  two  things  concur,  the 
ofl'ence  contemplated  by  the  statute 
is  completed.     The  party  who  has  re- 


ceived the  usurious  interest  in  respect  of 
the  corrupt  bargain,  then  incurs  the 
penalty,  and  I  think  the  only  penalty,  at- 
tached by  the  statute  to  that  corrupt 
bargain,  and  the  receipt  of  usurious  in- 
terest tliereon,  by  forfeiting  treble  the 
value  of  the  moneys  lent  or  forborne.  If 
it  were  otherwise,  and  each  subsequent 
payment  of  the  legal  iHterest  should 
constitute  a  distinct  oft'ence  of  usury, 
where  a  premium  has  been  given,  the 
consequence  would  be,  that  if  a  party 
took  legal  interest  for  such  a  loan,  at 
intervals,  he  would  be  liable  to  forfeit 
treble  the  amount  of  the  moneys  lent, 
not  merely  once,  but  each  time  he  re- 
ceived the  interest;  and  if  those  inter- 
vals were  short,  penalties  to  the  amount 
of  many  thousands  might  be  incurred 
by  a  loan  of  a  single  100/.  This  never 
could  have  been  the  intention  of  the  le- 
gislature. I  think  it  must  have  meant 
that  no  more  than  three  times  the 
amount  of  the  money  lent  could  ever  be 
forfeited  by  the  offender."  But  in  Lamb 
V.  Lindsey,  4  Watts  &  Serg.  449,  this 
question  was  directly  decided  in  an  op- 
posite way.  Money  was  loaned  at  usu- 
rious interest,  the  device  of  the  sale  of 
property  and  a  lease  back,  being  adopt- 
ed, to  disguise  the  transaction.  The 
rent,  amounting  to  15  per  cent,  upon  the 
money  loaned,  was  regularly  paid,  and 
the  present  qui  tarn  action  was  brought, 
more  than  a  year  from  the  first  payment, 
and  witiiin  a  year  from  the  last.  A 
majority  of  the  court  held  the  action 
maintainable,  deciding  that  the  penalty 
of  a  forfeiture  of  "  the  money  and  other 
things  lent,"  was  incurred  at  each  time 
when  the  lender  received  more  than  the 
legal  interest.  Mr.  Justice  Kennedy, 
however,  delivered  a  dissenting  opinion, 
in  wliic^h  he  vindicates  his  own  opposite 
ruling  at  nisi prius,  and  adopts  the  same 
view  taken  by  Mr.  Justice  Parle,  supra, 
although  the  case  of  Wood  v.  Grimwood 
was  not  cited  in  the  case. 


401 


THE   LAW   OF   CONTRACTS. 


[part  II. 


the  creditor  of  course  must  lose  this,  for  the  debtor  may  inter- 
)30se  this  defence,  however  inequitable  it  may  be.  But  if  the 
debtor  make  himself  a  plaintiff,  and  seek  relief  against  a  con- 
tract for  its  usury,  it  is  held,  in  equity,  that  he  must  pay  or 
tender  the  whole  amount  of  principal  and  legal  interest.  (/)  It 
was  once  an  established  rule  that  there  is  no  way  in  which 
the  debtor  can  ask  relief  at  law,  except  collaterally.  He  must 
wait  until  he  is  sued,  before  he  can  raise  directly  the  ques- 
tion of  his  right  to  this  defence,  and  then  this  defence  is 
given  and  measured  by  the  statute.  But  if  he,  for  example, 
brine's  trover  for  goods  pledged,  to  secure  a  debt  for  which  a 
note  with  usurious  interest  was  given,  and  seeks  to  get  the 
value  of  his  goods  without  deducting  his  debt,  on  the  ground 
that  the  npte  is  void,  it  might  be  said  to  him,  on  high  author- 
ity, that  the  note  may  be  void,  but  that  is  not  now  the  ques- 
tion ;  for  he  owes  money,  and  has  pledged  goods,  and  must 
pay  his  debt  to  redeem  them.  (U)  Bat  this  doctrine  has  been 
attacked,  and  perhaps  overthrown  in  England,  and  may  be 
doubted  here,  {m)     So,  if  he  has  paid  money  on  a  usurious 


(I)  Scott  u.  Ncsbit,  2  Browns.  Ch.  642, 
S.  C.  2  Cox,  183 ;  E.r parte  Skip,  2  Ves. 
489  ;  Baniicld  v'.  Solomons,  9  Vcs.  84 ; 
Rogers  v.  Rathbun,  1  Johns.  Ch.  R. 
367  ;  Tapper  v.  Powell,  Ibid.  439  ;  Fan- 
ning V.  Dunham,  5  Johns.  Ch.  122; 
Fulton  Bank  v.  Beach,  1  Paige,  429 ; 
Morgan  v.  Schcrmerhorn,  Ibid.  544 ;  Mc 
Daniels  v.  Barnum,  5  Verm.  292  ;  Jor- 
dan V.  Trumbo,  6  Gill  &  Johns.  103; 
Thomas  r.  Mason,  8  Gill,  1  ;  Anony- 
mous, 2  Dcs.  333  ;  Stone  v.  Ware,  6 
Munf.  541;  Shelton  v.  Gill,  11  Ohio, 
417;  McDaniels  i'.  Barnum,  5  Verm. 
279  ;  Day  v.  Cummings,  19  Verm.  496  ; 
Ballinger  v.  Edwards,  4  Ire.  Eq.  449  ; 
Phelps  y.Picrson,  1  Iowa,  121  ;  Wilson 
V.  Hardesty,  1  Maryl.  Ch.  Dec.  66.  In 
Hindlc  V.  O'Brien,  I  Taunt.  413,  the 
defendant  had  given  the  plaintifl",  for 
various  sums  borrowed  of  him,  bills  and 
notes  with  usurious  premiums.  The 
parties  at  length  stated  an  usurious  ac- 
count, and  the  defendant  gave  new  bills, 
and  a  warrant  of  attorney  to  confess 
judgment,  and  the  old  bills  and  notes 
were  given  up.  Upon  the  defendant's 
failure  to  pay  an  instalment  of  the  new 
l)ills,  ilie  pltiiniiffenterod  u])  judgment 
on  the  warrant  of  attorney  and  sued  out 


execution.  Upon  an  application  to  set 
aside  the  judgment,  the  court  did  so 
only  upon  the  terms  that  the  defendant 
should  repay  the  principal  and  legal 
interest  due,  which  was  ordered  to  be 
ascertained  by  a  prothonotary.  But  iu 
Roberts  v.  Goff",  4  B.  &  Akl.  92,  upon 
an  application  to  set  aside  a  judgment 
obtained  under  a  warrant  of  attorney, 
and  to  have  the  warrant  of  attorney  de- 
livered up,  on  the  ground  of  usury,  the 
court  refused  tg  impose  the  terms  that 
the  party  should  pay  the  money  actually 
advanced,  with  legal  interest.  Bai/lei/, 
J.,  said.  "  We  cannot  impose  sucli  terms. 
The  instrument  is  void.  It  is  not  good 
at  law."  Under  the  construction  ])Ut  upon 
tiic  Virginia  statute  of  usury,  it  seems 
that  the  debtor  need  only  ])ay  the  ])rinci- 
pal  debt,  without  any  interest.  Young  v. 
Scott,  4  ]{and.  415  ;  Cbukson's  Admr. 
r.  (Jarland,  1  Leigh,  147;  Turpin  v. 
Povall,  8  Leigh,  93;  Marks  i\  Morris,  4 
lien.  &  Munf.  463.  See  also  Boone  v. 
Poindexter,  12  Sm.  &.  M.  640. 

(//)  Fitzroy  v.  Gwillim,  T.  K.  \53. 

(ill)  Tregoning  v.  Atteiiborougli,  7 
Bing.  97,  4  .Aloore  &  1*.  722;  llar- 
greavcs  r:  Hutchinson,  2  A.  &  E.  12  ; 
RarasdcU  v.  JMorgan,  16  Wend.  574. 


en.  VI.]  OF  INTEKEST  AND  USURY.  405 

contract,  and  sues  for  its  repayment,  it  seems  that  he  will 
recover  so  much  as  he  has  paid  usuriously,  (mm)  but  no  more  ; 
that  is,  he  will  not  recover  the  legal  interest,  which  he  has 
paid  on  an  usurious  contract.  Courts  were  at  first  inclined 
to  deny  the  right  of  a  party  paying  usurious  interest,  to  re- 
cover back  any  portion  of  the  money  so  paid,  on  the  ground 
that  both  parties  to  such  a  transaction  were  m  pari  dcliclo, 
and  the  party  paying  the  money  parted  with  it  freely,  so  that 
the  maxim  volenti  non  Jit  injuria  would  apply,  {n)  But  this 
is  not  so  now,  the  rule  being  that  above  stated  ;  and  the  dis- 
tinction has  been  taken  between  statutes  enacted  on  general 
grounds  of  policy  and  public  expediency,  in  which  each  party 
violating  the  law  is  in  pari  delicto^  and  entitled  to  no  assist- 
ance from  a  court  of  justice,  and  those  laws  enacted  to  pro- 
tect weak  or  necessitous  men  from  being  overreached,  de- 
frauded, or  oppressed,  in  which  event  the  injured  party  may 
have  relief  extended  to  him,  and  the  whole  purport  and  rea- 
son, both  of  the  law  of  usury,  and  of  the  great  mass  of  deci- 
sions under  it,  indicate  that  the  lender  on  usury  is  regarded 
as  the  oppressor  and  the  criminal,  and  the  borrower  as  the 
oppressed  and  injured,  (o) 


SECTION  VII. 
OF   COXTRACTS   ACCIDENTALLY   USURIOUS. 

If  a  contract  is  accidentally  usurious,  that  is,  made  so  by 
some  mistake  in  calculation,  or  other  error  in  fact,  against 
the  intention  of  the  parties,  the  mistake  maybe  corrected,  and 
the  contract  saved,  {p)     But  if,  in  fact,  a  greater  rate  of  in- 

(?;»«)  Bosanqiiet  t'.  Daslnvood,  Cases  do,  through  mistake,  make  the  money 

Temp.  Tall)ot,  38,  per  Lord  Mansjicld ;  payable  sooner  than  it  ought  to  be,  or 

Browning  v.  Morris,  Cowp.  TO."?.  reserve  more  interest  than  ought  to  be, 

{;i)   Tomkinsv.  Bernet,  1  Salkeld,  22.  this  will  not  make  it  void  within  the 

(o)     Clark     v.    Shee,    Cowp.      197;  statute,   because  here  was   no    corrupt 

Browning  v.  ]\Iorris.  Cowp.  790  ;  Bosan-  agreement."    See  also  Nevison  v.  Whit- 

quet  r.  Dashwood,  Cases  Temp.  Talbot,  ley,    Cro.  Car.  501;  S.    C.    W.  Jones, 

38;    Wheaton    v.    Hibbard,  20  Johns!  396;  and   Buckley  v.  Guildbank,  Cro. 

292 ;  Beardslei/,    C.  J.,    Sehrocppel   v.  Jac.  678.     Glasfurd  v.  Laing,   1  Camp. 

Corning.  5  Denio,  240.  149,    was   an  action   on   a   bill  of  ex- 

(/))    Anonymous.   1    Freem.    253,  pi.  change  for   3,180/.,  the   defendants   re- 

208,  It  was  said,  by  Xorth.  C.  J.,  that  "  if  sistcd  the  action,  on  the  ground  of  usury, 

a  scrivener,  in  making  a  mortgage,  &c.,  and  showed  that  the  parties  for  whom 


406 


THE  LAW   OF   CONTRACTS. 


[part  II. 


terest  is  taken  than  the  law  allows,  by  reason  of  an  erroneous 
opinion  of  the  lender  that  he  had  a  right  to  this  interest,  this 
is  a  mistake  of  law,  and  agreeably  to  the  general  rule,  will 
not  excuse  the  lender,  and  the  whole  effect  of  usury  will 
attach  to  the  contract,  (q) 

The  question  has  been  very  much  discussed,  whether  banks, 
or  other  money-lenders,  or  bill  or  note  discounters,  have  a 
legal  right   to   adopt,  as   a  principle  of  calculation,  the  rule 


tlic  defendants  accepted,  being:  indebted 
to  the  plaintiff  in  St.  Kitts,  for  6,000/., 
^vith  6  per  cent,  legal  interest  there, 
agreed  with  the])laintitf  in  England,  that 
the  principal  sliould  be  ])aid  Ijy  two  bills 
of  exchange,  one  in  twelve  months  and 
the  other  in  two  years  ;  and  accordingly 
the  present  bill  for  3,180/.  and  another 
for  3,-360/.  were  drawn,  but  that,  accord- 
ing to  the  legal  rate  of  5  per  cent,  interest 
in  England,  the  bills  should  liave  been 
for  only  3,1.50/.  and  3,300/.  The  plain- 
tiff's agent,  however,  swore  tliat  the  in- 
creased amount  arose  from  an  oversight 
of  his;  that  having  been  called  upon  to 
calculate  the  sum  due  on  the  debt,  for 
which  the  bills  were  to  be  drawn,  after 
calculating  the  amount  due  on  the  ori- 
ginal debt  at  6/.  per  cent.,  as  permitted 
in  the  West  Indies,  he  inadvertently  cal- 
culated the  interest  to  grow  due  in 
England  at  the  same  rate.  Sir  James 
Mansfield,  C.  J.,  held  that  the  action 
might  clearly  be  maintained  for  the 
sum  hond  fide  due,  as  the  excess  in  the 
amount  of  the  bill  had  arisen  from  a 
mere  mistake,  and  no  intention  to  take 
usury  could,  at  any  rate,  be  imputed  to 
the  plaintiff.  See  also  Gibson  v.  Stearns, 
3  N.  11.  18.5;  Livingston  v.  Bird,  1 
Hoot,  303 ;  M'Lean,  J.,  Lloyd  v.  Scott,  4 
Pet.  224. 

(7)  Mar-sh  v.  Martindale,  3  Bos.  & 
P.  154;  Maine  Bank  r.  Butts,  9  Mass. 
40.  Tliis  was  an  action  brought  by  tlic 
bank,  to  recover  possession  of  certain 
premises  mortgaged  10  them  by  the  de- 
fendant, to  secure  several  notes  given 
by  him  to  the  bank.  Tlie  defendant 
alleged  that  on  the  date  of  mortgage 
deed,  the  ])laintiff  loaned  him  SIO.OOO, 
and  that  it  was  agreed  between  them 
tJiat  more  than  6  per  cent,  interest 
should  lie  paid  upon  tiie  loan,  and  that 
tlie  notes  secured  by  the  mortgage  were 
given  to  secure  such  princijial  and  ille- 
gal interest,  and  therefore  he  pleaded 
the  statute  of  usury.  It  appeared  upon 
the   trial  that  there  had  been  a  forbear- 


ance of  10,000  dollars  by  the  bank,  and 
that  the  interest  secured  in  the  mort- 
gage was  more  than  G  per  cent,  upon 
tlie  10,000  dollars  ;  but  it  was  proved 
that  the  excess  had  arisen,  not  from  a 
direct  reception  by  the  bank  of  more 
than  6  per  cent,  upon  any  notes,  but  by 
reason  of  the  defendant's  having,  in 
order  to  meet  notes  for  63  days,  at 
the  times  they  became  due,  procured 
new  loans,  a  week  previous  to  the  ex- 
piration of  the  time  of  credit  given 
for  the  former  lands,  giving  new  notes 
therefor;  and  it  was  contended  that  al- 
though the  money  thus  received  amount- 
ed to  more  than  6  per  cent,  upon  the 
original  debt,  for  the  reason  that  the 
bank  retained  the  amount  of  the  new 
notes  until  the  old  notes  became  due,  for 
the  purpose  of  meeting  them,  yet  that 
as  no  more  than  the  usual  i)rolits  upon 
loans  made  on  banking  princijdcs  were 
received,  such  agreements  were  not  usu- 
rious. But  the  court  decided  that  no 
banking  company,  any  more  than  an  in- 
dividual, had  authority  to  make  a  dis- 
count or  loan,  at  a  greater  profit  than  6 
per  cent,  interest,  nor  was  exempt  from 
the  restrictions  of  the  statute  against 
usury.  And  Scivall,  J.,  said,  "  It  is  pro- 
bable that  in  tiiis  case  there  was  no  in- 
tentional deviations  on  the  part  of  the 
bank;  but  a  mistake  of  their  rights. 
This,  however,  is  a  consideration,  which 
must  not  influence  our  decision.  The 
mistake  was  not  involuntary,  as  a  mis- 
calculation might  be  considered,  where 
an  intention  of  conforming  to  the  legal 
rule  of  interest  was  proved :  but  a  vo- 
luntary departure  from  the  rate.  An 
excess  of  interest  was  intentionally 
taken,  upon  a  mistaken  supposition 
that  banks  were  privileged  in  this  re- 
spect, to  a  certain  extent.  This  was 
therefore,  in  the  sense  of  the  law,  a  cor- 
rupt agi'ccment ;  for  ignorance  of  the 
law  will  not  excuse."  See  also  Childer 
V.  Deane,  4  Band.  40G. 


en.  Yi.] 


OF   INTEREST   AND    USURY. 


407 


that  gives  rather  more  than  legal  interest  upon  notes  dis- 
counted, or  to  which  the  interest  is  added,  in  case  of  fractional 
portions  of  years  and  months.  Eowlett's  Tables,  which  are 
calculated  mainly  on  the  supposition  that  a  year  consists  of 
360  days,  gives  this  advantage  to  the  lender.  The  use  of 
these  tables,  or  of  a  similar  principle  of  calculation,  is  very 
general,  not  to  say  universal.  And  although  this  practice  is, 
strictly  speaking,  usurious,  and  there  is  much  conflict  in  the 
authorities,  we  have  no  doubt  that  the  prevailing  rule  of  law 
sanctions  this  practice,  where  it  is  adopted,  merely  as  a  con- 
venience, and  in  conformity  to  usage,  (r) 


(r)  In  New  York  Firemen  Ins.  Co.  v. 
Ely,  2  Cow.  678,  a  note  for  90  days, 
indorsed  by  the  defendants,  was  the 
cause  of  action  ;  it  was  given  for  two 
others,  which  in  turn  were  a  renewal  of 
otiicrs.  Some  of  the  previous  notes  liad 
been  payable  at  90  days,  and  all  the 
notes  had  been  discounted  by  the  plain- 
tiffs, at.  7  per  cent.,  and  the  discount  de- 
ducted in  advance.  The  secretary  of 
the  company  testified  that  his  practice 
had  been  to  cast  interest,  considering  30 
days  the  twelfth  of  a  year,  60  days  the 
sixth,  and  90  days  the  fourth  of  a  year, 
and  to  cast  interest  at  7  per  cent,  (tlie 
laAvful  rate)  accordingly.  The  three 
days  of  grace  he  called  one  tenth  of  a 
month.  The  question  was  whether  the 
note  sued  upon  was  usurious,  and  it  was 
decided  to  be  so.  The  court  say,  "  It 
must  be  conceded  that  more  than  seven 
per  cent,  per  annum,  was  received  upon 
the  discount  of  the  note,  in  this  case. 
How  is  the  presumption  of  law,  that  it 
was  received  in  pursuance  of  a  corrupt 
agreement,  souglit  to  be  repelled  ?  Not 
by  showing  that  the  sum  paid  for  inter- 
est was  greater  tlum  the  parties  intended 
should  be  paid ;  that  there  was  a  mis- 
take in  telling  the  money ;  or  that  the 
clerk  wlio  cast  the  interest,  had  fallen 
into  an  arithmetical  error ;  but  by  show- 
ing that  the  excess  arose  from  the  adop- 
tion of  a  principle  of  calculation,  which 
the  parties  knew  would  give  more  than 
seven  per  cent.,  thougli  they  believed  it 
was  not  a  violation  of  the  statute.  In 
other  words,  tlie  plaintiffs  received  more 
than  seven  per  cent.,  because  they  be- 
lieved that  they  liad  a  legal  right  to  re- 
ceive more.  If  tiiey  judged  erroneously, 
it  was  a  mistake  in  point  of  law,  and 
not  in  point  of  fact ;  and  unless  there 


be  something  in  the  case  of  usury  to 
distinguish  it  from  all  other  cases,  their 
ignorance  or  mistake  in  relation  to  the 
law,  can  afford  them  no  protection  ;"  and 
after  examining  the  cases  upon  the  sub- 
ject the  court  concluded  that  the  mis- 
take of  tlie  parties  did  not  prevent  the 
contract  from  being  usurious,  as  matter 
of  law,  and  its  consequences  from  result- 
ing." The  same  view  is  taken  in  Utica 
Insurance  Co.  v.  Tillman,  1  Wend.  555; 
Bank  of  Utica  v.  Wagar,  8  Cow.  398  ; 
State  Bank  v.  Cowan,  8  Leigh,  253.  On 
the  other  hand,  see  Lyon  v.  State  Bank, 
1  Stewart,  442;  PlamersBank  v.  Snod- 
grass,4  How.  (Miss.)  573  ;  Duvall  v.  Far- 
mers Bank,  7  Gill  &  Johns.  44;  Duncan 
V.  Maryland  Savings  Institution,  10  G. 
&  J.  299  ;  Bank  of  St.  Albans,  1  Verm. 
426;  Agricultural  Bank  v.  Bissell,  12 
Pick.  586.  In  this  last  case  the  cashier 
of  the  bank  took  S21  as  the  interest  of 
$200  for  sixty-three  days.  Shaw,  C.  J., 
said,  '•  That  this  sum  a  little  exceeds  6 
per  cent,  for  one  year,  as  fixed  by  statute, 
is  very  obvious.  If  this  were  done  with 
design,  and  with  tlie  intent  of  taking 
more  than  the  lawful  interest,  or  if  done 
in  pursuance  of  the  adoption  of  a  prin- 
ciple of  computation,  which  would  give 
more  than  the  legal  rate,  we  are  not  pre- 
pared to  say  that  it  would  not  be  usu- 
rious, however  small  the  excess  over  the 
legal  rate.  But,  as  the  statute  prescribes 
the  rate  of  interest  for  one  year ,  and  so 
at  the  same  rate,  for  a  longer  or  shorter 
time,  it  is  ol)vious,  that  when  the  inter- 
est is  to  be  computed  in  days  or  months, 
it  is  impossil)le  to  follow  the  prescribed 
rule  precisely,  without  taking  the  frac- 
tion of  a  day ;  and  that  this  is  not  re- 
quired, is  now  settled  by  tlic  wliole  cur- 
rent of  authorities,  i'rom  tljp  impossibi- 


408  THE   LAW   OF   CONTRACTS.  [PART  II. 

SECTION  yjii. 

OF   DISCOUNT   OF   NOTES   AND    BILLS. 

The  practice  of  discounting  bills  or  notes  by  deducting  from 
their  face  the  interest  for  the  whole  time  they  had  to  run,  be- 
gan with  our  banks,  and  was  soon  so  firmly  established,  that 
it  was  sanctioned  by  the  courts,  almost  of  necessity.  But 
this  practice  is,  in  itself,  certainly  usurious,  for  the  borrower 
has  the  use  of  the  amount  of  the  note,  minus  the  interest, 
and  pays  interest  for  the  whole  amount.  Having  been  sanc- 
tioned in  respect  to  corporations  whose  business  it  was  to 
lend  money,  a  distinction  could  not  be  made  against  indivi- 
duals who  lent  money;  and  it  may  now  be  considered  as 
settled,  rather  for  the  sake  of  convenience  than  upon  principle, 
that  it  is  not  usurious  to  take  the  interest  in  advance,  by  way 
of  discount,  although  it  is  obvious,  that  by  carrying  this  prin- 
ciple far  enough,  any  amount  of  excessive  interest  may  be 
taken.  Thus,  if  the  legal  interest  were  six  per  cent.,  and  a 
note  for  a  thousand  dollars  had  ten  years  to  run,  the  borrower 
would  receive  four   hundred  dollars,  and  at  the  end  of  ten 

lit}'  of  executing  the  statute  with  literal  allowable,  without  drawing  after  it  the 

exactness,  has  resulted  the  necessity  of  penalty  of  the  statute.     Such  being  the 

resorting  to    an  execution  cij  pres,  in  universal  practice,  of  otlier  ])ei'sons  as 

many  cases,  where  it  is  intended  to  con-  well  as  banks,  m'C  think  a  jury  would 

form  to  the  intent  and  spirit  of  the  sta-  not   be  warranted,  from  the  mere  f;\ct 

tutc.     So   it  has   been   the  practice  to  tliat  the  interest  thus  computed  slightly 

consider  a  contract  for  money  payable  e:>cceds  the  legal  rate,  to  infer  a  corrupt 

in  months,  to  be  payable  in  calendar  and  usurious  agreement.  And  we  think 

months,   and   to  consider    a    calendar  tlie  present  case  comes  within  this  rule, 

month  as  the  twelfth  part  of  a  year,  and  Tlie  intent  was,  to  compute  and  receive 

compute    interest  accordingly,  though  the  interest  for  GO  days  and  grace.    The 

they  arc  of  diHercnt  lengtlis.     A  note  grace  is  a  regular  portion  of  the  time 

given  in  February,  at  two  months,  will  the  note  has  to  run,  and  tiie  bank  had  a 

have  57  days  to  run,  and  pay  one  per  right  to  compute  and  receive  interest  for 

cent,  interest,  as  for  the  sixth  part  of  a  it.     Tlie  period  of  sixty  days,  is   one 

year:  but  a  note  given  in  December,  at  sixth  of  a  year,  as  nearly  as  can  be  com- 

tvvo  months,  will  have  62  days  to  run,  putcd  without  a  fraction  ;  and  tln-cc  days 

and  pay  the  same  rate  of  interest.     The  is  the  nearest  approximation  to  the  10th 

same  (lifliculty  arises,  in  computing  in-  i)art  of  a  montli,  or  the  120tli  part  of  a 

terest  for  a  small  number  of  days  ;  and  year,  witliont  fractions  of  a  day.     Upon 

therefore    some    approximation,   which  tiiis  view  of  the  case,  we  are  of  opinion, 

can  be  made  by  an  easy  and  practicable  tliat  it  is  not  shown  tliat  usurious  intc- 

mode  of  computation,  if  made  in  good  rest  was  taken, contrary  to  the  j)rovisions 

faitli  and  witliout  being  intended  as  a  of  the  statute,  and  that  the  defence  is 

cover  for  ^jsury,  has  been  considered  not  sustained." 


CU.  VI.]  OF  INTEREST  AND  USURY.  409 

years,  pay  six  hundred  for  the  use  of  it,  or  sixty  dollars  a 
year  for  the  use  of  four  hundred,  which  is  obviously  much 
more  than  even  compound  interest.  There  seems,  however, 
to  be  a  strong  disposition  to  limit  this  practice  to  short  paper, 
or  at  least  not  to  apply  it  to  long  loans  or  discounts,  although 
nothing  like  a  fixed  rule  or  standard  can  be  found,  either  in 
the  authorities  or  in  the  usage,  and  it  must  often  be  difficult 
to  apply  such  a  distinction,  (s)  It  seems  originally  to  have 
been  doubted  whether  the  receipt  of  interest  quarterly  or 
semi-annually  was  not  usurious,  on  the  ground  that  the 
lender  received  thereby  more  than  the  legal  rate  by  the 
year.  And  for  a  considerable  time  these  contracts  were 
considered  usurious,  upon  which  the  legal  interest  was  de- 
ducted from  the  sum  loaned,  or  paid  in  advance,  (t)  But 
the  practice  is  now  universal,  both  in  England  and  in  this 
country.  The  authorities,  however,  which  sustain  this  depar- 
ture from  the  accurate  enforcement  of  the  usury  laws,  seem 
mainly  to  rest  upon  the  principle  that  the  additional  sum 
received  by  the  lender  may  be  considered  in  the  nature  of  a 
compensation  for  his  services  and  trouble.  And  all  the 
decisions  show  that  such  anticipated  reception  of  interest 
must  be  confined  to  cases  where  a  bill  or  note  is  given  by  the 
borrower,  and  does  not  extend  to  any  ordinary  private  agree- 
ment of  loan,  (m) 

(s)  See  Barnes  v.  Worlich,  Cro.  Jac.  from  the  cases,  by  Sutherland,  J.,  in 
25,  S.  C.  Yelvcrton,  31,  and  Grysill  v.  which  the  whole  court  seem  to  have 
Wiiichcott,  Cro.  Charles,  283 ;  Caliot  v.  concurred,  was  this  :  "  The  takint;  of  in- 
Walker,  2  Anstruther,  496  ;  Eaton  v.  terest  in  advance,  is  allowed  for  tlie  ben- 
Bell,  5  Bar.  &  Aid.  40;  Mowryw.  Bishop,  efit  of  trade,  although,  by  allowing  it, 
5  Paige,  98.  more  than  the  legal  rate  of  interest  is,  in 

(t)  In  Anonymous,  Noy,  171,  usury  fact,  taken;   that  bemg  for  the  benefit 

was  pleaded  to  an  action  upon  a  bond,  of  trade,  the  instrument  discounted,  or 

Pop/iam,  J.,  said,  "  If  a  man  lend  lOOLfor  upon  which  the  interest  is  taken  in  ad- 

a  year,  and  to  have  10/.  for  the  use  of  it,  vance,  must  be  such  as  ivill,  and  usually 

if  "the  obligor  pays  the  10/.  twenty  days  does,  circulate  or  pass  in  the  course  of 

before  it  is  due,  that  does  not  make  tlie  trade.     It  must,  therefore,  be  a  ncgotia- 

obligation  void,  because  it  was  not  cor-  blc  instrument,  and  jjayable  at  no  very 

rupt.     But  if  upon  making  the  obliga-  distant  day ;  for  without  these  qualities 

tion   it  had  been  agreed  that  the   10/.  it  will   not   circulate   in    the   course  of 

should  have  been  paid  within  the  time,  trade.     Under  these  limitations  the  tak- 

that  should  have  been  usury,  because  he  ing  of  interest  in  advance,  cither  by  a 

had  not  the  100/.  for  the  whole  year,  bank,  or  incorporated  company  without 

when  the  10/.  was  to  be  paid  within  the  banking  j)owers,  or  an  individual,  is  not 

year.  And  verdict  was  given  accordingly,  usurious."     In  Marsh  v.  Martindale,  3 

(m)  In  N.   Y,  Firemen  Ins.    Co.   v.  B.  &  P.  154,  the  defendants  were  accept- 

Ely,  2  Cow.  703,  the  principle  extracted  ors  of  a  bill  of   exchange  for  5,000/., 

VOL.    II.  35 


410 


THE  LAW  OF  CONTRACTS. 


[part  II. 


SECTION  IX. 


OF  A  CHARGE  FOR  COMPENSATION  FOR  SERVICE. 


It  is  quite  certain,  also,  that  the  lender,  whether  banker  or 
broker,  may  charge,  in  addition  to  the  discount,  a  reasonable 


drawn  by  Eobcrt  Wood,  payable  in 
tlucc  years,  to  the  jilaintiiF.  It  appeared 
that  Kobcrt  Wood,  liavinijc  {^ranted  an 
annuity  to  the  plaintiil',  which  he  desired 
to  redeem,  and  which,  together  with 
charges  u])on  it.  w-as  worth  4,134/., 
brought  to  tlic  phiintift'  the  bill  in  (jues- 
tion,  which  the  plaintiff"  agreed  to  dis- 
count, and  the  .5,000/.  was  made  up  of 
the  price  of  the  annuity,  4,134/.,  116/. 
j)aid  to  the  defendant  in  cash,  and  750/., 
three  years'  discount  on  the  note.  The 
present  action  was  on  a  bond  given  as  a 
substitute  for  the  note,  and  the  defence 
of  usnry  was  set  up,  which  it  was  at- 
tempted to  answer  by  considering  the 
transaction  as  a  discount  in  advance  of 
the  interest  due  on  the  .500/.  note,  which 
would  not  be  usurious.  The  court 
determined  that  as  the  bill  was  for 
so  long  a  time,  coupled  with  its  being 
a  redemption  of  the  annuity,  it  was  evi- 
dent tliat  the  transaction  was  not  a  dis- 
count in  the  way  of  trade,  but  a  loan  of 
money,  a  method .  of  obtaining  more 
than  legal  interest,  which  was  corrupt 
in  law,  whatever  the  intention  of  the 
parties  might  have  been.  Lord  Alvan- 
lei/,  C.  J.,  said,  "  It  is  also  contended, 
that  at  all  events  the  negotiation  of  the 
bill  of  exchange  was  a  transaction  in 
the  usual  mode,  in  which  all  persons 
possessed  of  bills  of  exchange  have  been 
permitted  to  discount  them ;  in  which 
cases  the  interest  is  always  deducted 
from  the  monc}^  advanced.  It  certainly 
has  been  determined  that  such  a  trans- 
action on  a  bill  of  exchange,  in  tlie  way 
of  trade,  for  the  accommodation  of  the 
party  desirous  of  raising  money,  is  not 
usurious,  though  more  than  five  percent. 
be  taken  upon  the  money  actually  ad- 
vanced. In  such  cases  the  additional 
sum  seems  to  have  been  considered  in 
the  nature  of  a  compensation  for  the 
trouble  to  which  (he  lender  is  exposed  ; 
anil  unless  that  indulgence  were  allow- 
ed, it  might  not  be  worth  while  for  any 
merchant  to  discount  a  l)i!l.  If,  there- 
fore, nothing  more  has  been  done  in  this 


case  than  what  always  has  been  done 
by  way  of  accommodation  among  mer- 
chants, the  transaction  was  not  usu- 
rious ;  but  the  rule  must  be  confined 
strictly  to  that  sort  of  transaction ;  for 
if  discount  be  taken  upon  an  advance  of 
money  without  the  negotiation  of  a  bill 
of  exchange,  it  will  amount  to  usury,  as 
appears  clearly  from  the  cases  which 
were  cited  in  the  argument.  We  must, 
therefore,  consider  what  was  the  real 
transaction  between  the  parties."  In 
Lloyd  qui  tarn  v.  Williams,  2  W.  Bl. 
792,  where  Hinchliflc  borrowed  100/.  of 
the  defendant,  and  immediately  paid 
him  tliercout  G/.  5s.  advance  interest, 
and  gave  his  note  for  100/.  payable  in 
three  months,  DeGrei/,  Ch.  J.,  and  Black- 
stone,  J.,  inclined  to  think  that  the  of- 
fence was  consummated  and  completely 
committed,  on  making  the  corrupt  agree- 
ment, and  receiving  the  interest  by  ad- 
vance ;  and  that  it  was  not  to  be  con- 
sidered as  merely  a  loan  of  93/.  15s. 
The  statute  12  Anne  is  express,  that  it 
is  usury  to  take  above  five  per  cent,  for 
the  forbearing  or  giving  day  of  pay- 
ment, which  plainly  has  respect  to  a 
taking  of  the  interest,  or  forbearance, 
before  the  principal  sum  is  due.  And 
Blackstone  conceived,  that  interest  may 
as  lawfully  be  received  beforehand,  for 
forbearing,  as,  after  the  term  is  expired, 
for  having  forborne.  And  it  shall  not 
be  reckoned  as  merely  a  loan  of  the  bal- 
ance. For,  if  upon  discounting  a  100/, 
note  at  five  per  cent,  he  should  be  con- 
strued to  lend  only  95/.  then,  at  the  end 
of  the  time,  he  would  receive  5/.  interest, 
for  tiie  loan  of  95/.  principal,  which  is 
above  the  legal  rate."  In  Fioyer  ?'.  lild- 
wards,  Cowp.  IIG,  Lord  3-lans/ield  sn'id, 
in  reference  to  the  general  ])ractice  of 
trade  to  stipulate  for  a  certain  per  cent, 
upon  a  neglect  to  pay  the  price  of  goods 
bought,  "  It  is  true  the  use  of  this  prac- 
tice will  avail  nothing,  if  meant  as  an 
evasion  of  the  statute ;  for  usage  cer- 
tainly will  not  protect  usm-y.  But  it 
goes  a  great  way  to  explain  a  transac- 


en.  VI.] 


OF   INTEREST   AND    USURY. 


411 


sum  for  his  trouble  or  services,  (v)  And  this  principle  is  not 
confined  to  bankers  and  brokers,  but  is  extended  to  all  cases  in 
which  there  may  be  such  services  as  are  fairly  entitled  to  com- 


tion  ;  and  in  tliis  case  is  strong  evidence 
to  show  that  there  was  no  intention  to 
cover  a  loan  of  money.  U])on  a  nice 
calculation  it  will  be  found  that  the 
practice  of  tlie  banks,  in  discounting 
bills,  exceeds  the  rate  of  five  per  cent. ; 
for  they  take  interest  upon  the  whole 
sum  for  the  whole  time  the  bills  run, 
but  pay  only  part  of  the  mone\%  viz.,  by 
deducting  the  interest  first ;  yet  this  is 
not  usury.  In  Maine  Baidc  v.  Butts,  9 
Mass.  54,  referred  to  above,  in  which  it 
was  decided  that  banks  had  no  more 
right  than  individuals  to  receive  more 
than  six  percent-  legal  interest,  and  that 
the  '  banking  privileges,'  given  by  tlie 
legislature,  did  not  confer  such  a  power, 
the  court  said,  "  That  expression,  if  it  has 
any  peculiar  meaning,  is  an  authority  to 
deduct  the  interest  at  the  commencement 
of  loans  or  to  make  loans  upon  discounts, 
instead  of  the  ordinary  forms  of  securi- 
ty for  an  accruing  interest.  But  indi- 
viduals have  a  like  authoritj',  although 
in  both  cases  the  construction  is  a  re- 
laxation of  the  prohil)itions  of  the  sta- 
tute against  usury,  and  allows  a  rate  of 
interest,  which  may  be  estimated  at  a 
small  extent  beyond  six  per  cent,  per 
annum.  Banks,  in  their  discounts,  never 
venture  to  exceed  that  rate,  in  the  deduc- 
tions which  they  make  from  their  loans, 
although  this  anticipation  of  interest,  in 
effect,  gives  more  than  the  fixed  rate 
upon  the  sum  actually  paid  out."  In 
Flecknur  v.  U.  S.  Bank,  8  Wheat.  354, 
the  court  say  upon  this  question,  "  The 
next  point  arising  on  the  record  is, 
whether  the  discount  taken  in  this  case 
was  usurious.  It  is  not  pretended,  that 
interest  was  deducted  for  a  greater 
length  of  lime  than  the  note  had  to  run, 
or  for  more  than  at  the  rate  of  six  per 
cent,  per  annum  on  the  sum  due  by  the 
note.  The  sole  objection  is,  the  deduc- 
tion of  the  interest  from  the  amount  of 
the  note  at  the  time  it  was  discounted ; 
and  this,  it  is  said,  gives  the  bank  at  the 
rate  of  more  than  six  per  cent,  upon  tlie 
sum  actually  carried  to  the  credit  of  the 
Planters"  Bank.  If  a  transaction  of  this 
sort  is  to  be  deemed  usurious,  the  same 
principle  must  apply  with  equal  force 
to  bank  discounts  generally,  for  the 
practice  is  believed  to  be  universal ;  and 
probably   few   if   any  charters  contain 


an  express  provision,  authorizing,  in 
terms,  the  deduction  of  the  interest  in 
advance,  upon  making  loans  or  dis- 
counts. It  has  always  been  supposed 
that  an  authority  to  discount,  or  to 
make  discounts,  did,  from  the  very 
force  of  the  terms,  nccessaril}'  include 
an  authority  to  take  the  interest  in  ad- 
vance. And  this  is  not  only  the  settled 
opinion  among  professional  and  com- 
mercial men,  but  stands  approved  by 
the  soundest  principles  of  legal  con- 
struction. Indeed,  we  do  not  know  in 
what  other  sense  the  word  discount  is  to 
be  interpreted.  Even  in  England,  where 
no  statute  authorizes  bankers  to  make 
discounts,  it  has  been  solemnly  adjudged 
that  the  taking  of  interest  in  advance, 
by  bankers,  upon  loans,  in  the  ordinary 
course  of  business,  is  not  usurious."  See 
also  to  tlie  same  effect  as  the  foregoing 
cases:  Manhattan  Co.  v.  Osgood,  15 
Johns.  164;  Bank  of  Uticav.  Thillips,  3 
Wend.  408  ;  Utica  Ins.  Co.  v.  Blood- 
good,  4  Wend.  652 ;  Bank  of  Utica  v. 
Wager,  2  Cow.  712  ;  Stribling  v.  Bank 
of  the  Valley,  5  Rand.  132  ;  Thornton 
V.  Bank  of  'Washington,  3  Pet.  36 ; 
State  Bank  v.  Hunter,  1  Dev.  L.  100 ; 
Cole  r.  Lockhart,  2  Cart.  (Ind.)  631  ; 
McGill  V.  Ware,  4  Scam.  21 ;  Ticonic 
Bunk  V.  Johns,  31  Maine,  414  ;  Sessions 
V.  lUchmond,  1  Rhode  Island,  305 ; 
Haas  V.  Flint,  8  Blackf.  67  ;  Duncan  v. 
Maryland  Savings  Institution,  10  Gill 
&  Johns.  311.  See  also  Hoyt  v.  Bridge- 
water  Co.  2  Hals.  Ch.  253,  625. 

(v)  Auriol  V.  Thomas,  2  T.  R.  52. 
Winch  qui  tarn  v.  Fenn,  cited  2  T.  R. 
52 ;  Caliot  v.  Walker,  2  Anstruther, 
496;  Booke,  J.,  Hammett  r.  Yea,  1  B. 

6  P.  156 ;  Masterman  v.  Cowrie.  3 
Camp.  488 ;  Ex  parte  Jones,  17  Ves. 
332 ;  Ex  parte  Henson,  1  Maddock,  115; 
Ex  parte  Gwyn,  2  Dea.  &  Ch.  12;  Gib- 
son V.  Livesey,  cited  4  M.  &  Sel.  196  ; 
Kent  V.  Phelp's,  2  Day,  483  ;  Hutchinson 
V.  Ilosmer,  2  Conn.  341 ;  Hall  r.  Dag- 
gett, 6  Cowen,  657 ;  Nourse  i\  Prime, 

7  Johns.  Ch.  69:  Trotter  w.  Curtis,  19 
Johns.  160  ;  Suvdani  i:  Westfall,  4  Hill. 
211;  Suvdam  v.  Bartle,  10  Paige,  94; 
Bullock '  ('.  Boyd,  1  Ilotl'man's  Ch., 
294;  Holford  v.  Blatchford,  2  Sandf. 
Ch.  149;  Seymour  I'.  Marvin,  11  Barb. 
80 ;  M'Kesson  v.  M'Dowell,  4  Dev.  & 


412 


THE   LAW   OF    CONTRACTS. 


[PART  II. 


pcnsalion,  although  the  lender  be  neither  banker  nor  broker, 
nor  engaged  in  trade,  and  lends  his  own  money,  (iv)  But  it 
seems  that  the  sum  paid  as  a  compensation  or  commission 
for  service  or  trouble  in  any  case,  must  not  exceed  the  amount 
usually  taken  in  the  course  of  trade  in  that  business  ;  and  if 
it  do,  such  excess  will  make  the  contract  usurious,  (x)  If 
there  be  such  charge  it  will  be  a  question  for  the  jury,  w' hether 
it  is  in  fact  a  reasonable  compensation  for  services  rendered, 
or  a  mere  pretence  for  obtaining   usurious  interest ;  (ij)  in 


Battlen,  120;  Eowland  v.  Bull's  Exrs., 
5  B.  Mon.  147;  Brown  v.  Harrison,  17 
Ala.,  774.  See  also  Ex  parte  Patrick, 
1  Montagu  &  Ayrton,  385 ;  Harris  v. 
Boston.  2  Camp.  348. 

(w)  Ex  parte  Gwyn.  2  Deacon  &  Cliit- 
tT,  12.  And  in  Palmer  v.  Baker,  1 
Manic  &  Sol.  b<3,  where  a  rij^ht  to  pur- 
chase certain  timber  then  standing;  on  the 
land  of  the  vendor,  was  assigned  by  the 
vendee,  to  secure  a  debt  due  from  him, 
under  which  agreement  the  assignees 
were  to  take  upon  themselves  the  getting 
out  and  working  of  the  timber,  and  after 
paying  tliemsolves  the  amount  due  them, 
with  interest  thereon,  and  after  deducting 
"  the  further  sum  of  200/.,  as  and  for  a 
reasonable  profit  and  compensation  for 
the  trouble  they  would  be  at  in  the  busi- 
ness, and  also  all  costs,  charges,  damages, 
and  expenses,  which  they  should  or  might 
expend,  be  put  to,  or  be  liable  for,  on  ac- 
count of  the  premises,  or  in  anywise  re- 
lating thereto,"  were  to  repay  the  sajne 
to  their  assignor ;  the  court  refused  to 
nonsuit  the  plaintiff  in  the  present  suit, 
brought  by  the  assignees,  against  the 
sheriff,  who  had  seized  a  portion  of  the 
timber  as  the  property  of  tlie  assignor, 
and  decided  that,  as  the  jury  had  not 
found  that  the  compensation  was  color- 
able, or  excessive,  the  court  could  not 
say  tliat  the  contract  was  usurious,  since 
the  compensation  must  therefore  be 
taken  to  be  a  reasonable  one,  for  the 
services  performed  and  the  trouble  in- 
curred. In  Bayncs  v.  Fr}',  lo  Ves.  120, 
a  claim  was  made  upon  certain  property, 
for  commission  money.  The  party 
claiming  the  commission,  having  ad- 
vanced money  at  5  per  cent,  interest, 
took  l)ills  upon  Hamburg,  wliicli  bills 
he  sent  there  for  the  ])urposc  of  obtain- 
ing their  amount,  and  upon  this  trans- 
action the  commission  was  claimed, 
which  claim  was  objected  to  because  it 


was  usurious.  Lord  Chancellor  Eldon 
said :  "  The  first  case  upon  this  point 
was  that  upon  the  circuit,  in  1780,  Ben- 
son V.  Parry,  where  Lord  Chief  Justice, 
then  Baron,  Eyre,  held  that  a  country 
banker,  discounting  bills  payable  in 
London,  could  not  take  a  commission, 
but  that  was  set  right  upon  an  applica- 
tion to  the  court.  I  take  the  facts  of 
this  case,  as  far  as  I  can  understand 
them  from  the  accounts  that  have  been 
handed  up,  to  stand  thus :  Hanson  ad- 
vanced money  to  these  parties,  u]ion  the 
terms  of  receiving  interest ;  desiring 
them,  if  they  liad  bills  upon  Hamhiur/, 
to  put  them  into  liis  hands,  for  the  pur- 
pose of  sending  them  there,  to  procure 
acceptance  and  payment ;  in  order  to 
bring  himself  home,  taking  a  reasonable 
commission  for  his  trouble  in  doing  so. 
That,  according  to  modern  doctrine,  is 
not  usurious." 

(x)  In  Harris  i\  Boston,  2  Camp. 
348,  the  plaintiffs  were  seed  factors,  and 
bought  large  quantities  of  rape  seed  for 
the  defendant,  advancing  money  there- 
upon, for  which  they  charged  the  legal 
interest ;  and  it  was  also  agreed  that  tliey 
should  have  a  commission  of  2j  per 
cent,  upon  all  the  seed  purchased.  Upon 
an  action  to  recover  an  amount  due 
under  this  contract,  to  which  usury  was 
pleaded,  many  witnesses  swore  that 
the  highest  commission  they  luid  ever 
known  taken  upon  sucli  purchases,  was 
one  shilling  a  quarter,  wliicli,  at  the  cur- 
rent ])rice  of  rape  seed,  amounted  to 
exactly  one  per  cent.  Lord  Ellcnhorowjh 
said,  "If  the  plaintiffs  would  liave  duly 
made  the  purchases  for  one  per  cent.,  but 
charge  2^-,  besides  legal  interest,  where 
they  advance  tlie  money,  tills  commission 
must  be  considered  an  cx[icdient  for  en- 
hancing tiie  rate  of  interest  l)eyond  5  per 
cent.,  and  is  a  mere  color  for  usury." 

(y)  Kent  v.  Phelps,  2  Day,  483  ;  Hut- 


en.  vr.] 


OP   INTEREST   AND    USURY. 


41^ 


wliicli  case,  of  course,  it  will  not  be  allowed.  The  party 
drawing  a  bill  may  also  charge  a  sum,  in  addition  to  legal 
interest,  as  the  rate  of  exchange  between  the  place  where  the 
loan  is  actually  advanced  and  the  place  where  it  is  to  be  re- 
paid;  provided  such  charge  is  the  customary  rate,  and  there- 
fore not  a  device  to  cover  usury,  (c)  So  if  the  acceptor  of 
a  bill  pays  it  before  it  is  due,  it  is  held  that  he  may  deduct 


chinson  r.  Hosmer,  2   Conn.  341  ;  De 
Forest  ?•.  Strong,  8  Conn.  519;  IM'Kes- 
son  V.  M'Dowcll,  4   Dcv.   &   B.   120; 
Bartlett    v.    Williams,    1    Pick.    29-4; 
Stevens  v.  Davis,  3  Met.  211  ;  Brown  v. 
Harrison.  17  Ala.  774.     In  Carstairs  v. 
Stein,  4  M.  &  Sel.  192,  the  defendants 
allowed  Kensington  &  Co.  to  draw  upon 
them,   for    an    amount  not   exceeding 
20,000/.  at  any  one  time,  and  were  to  re- 
ceive a  commission  of  one  half  per  cent, 
upon  the  amount  of  the  bills  drawn.  In 
this  action,  brought  by  the  assignees  of 
Kensington  &  Co.,  for  balances  alleged 
to   be   due,  the  defence  of  usury  was 
alleged,   and    evidence  was   offered   to 
show  that  the  commission  of  one  half 
per  cent,  was  unreasonable,  and  more 
than  the  accustomed  rate.     Lord  Ellen- 
borough  directed  the  jury,  that  if  the  com- 
mission could  be  fairly  set  to  the  account 
of  trouble  and  inconvenience,  it  was  not 
usurious;  otherwise  if  the  commission 
overstepped  the  boiid  fide  trouble,  and 
was  mixed  with  an  advance  of  money, 
in  order  to  effect  an  inducement  for  such 
advance,  from    time   to   time,  and   his 
Lordship  inclined  to  consider  the  trans- 
action, under  the  circumstances,  usurious, 
but  left  it  to  the  jury,  who  found  other- 
wise for  the  plaintiff.      Upon  a  motion 
for  a  new  trial  the  court  refused  to  dis- 
turb the  verdict.     Lord  Ellenborough,  C. 
J.,  said,  "  The  principal  question   has 
been,   whether  the   one  half  per  cent, 
agreed  to  be  charged  for  commission,  in 
this  case,  is  clearly  referable  to  an  usuri- 
ous contract  between  the  parties,  for  the 
payment  of  interest  above  five  per  cent, 
upon  a  loan  of  money,  or  whether  it  may 
not   be   referred   to   an  agreed  case  of 
remuneration,    justly    demandable    for 
trouble  and  expense  incurred,  in  the  ac- 
cepting  and  negotiating  bills  remitted 
to  and  drawn  upon  them,  and  in  the 
doing  such  other  business  as  is  stated  to 
have    been  done   by   the   Kensingtons, 
for  the  houses  or  rather  for  tlic  house 
of  the    defendants,  under  its   diftcrcnt 

35* 


names  and  descriptions All  com- 
mission, where  a  loan  of  money  exists, 
must    be    ascribed    to   and   considered 
as  an  excess,  beyond  legal  interest,  un- 
less as  far  as  it  is  ascrihable  to  trouble 
and  expense  bo}id  Jicle  incurred,  in  the 
course  of  the  business  transacted  by  the 
persons   to   whom  such  commission  is 
paid ;   but  whether   anything   and  hov/ 
much  is  justly  ascrihable  to  this  latter 
account,  viz,  that  of  trouble  and  expense, 
is  always  a  question  for  the  jury,  who 
must,  upon  a  view  of  all  the  facts,  exer- 
cise a  sound  judgment  thereupon."  His 
Lordship  ii-ecapitulated  here  the   suspi- 
cious circumstances  in  the  case,  and  then 
said,    "  These   circumstances    certainly 
laid  a  foundation  for  suspecting  that  the 
high  rate  of  commission  contracted  for 
was  a  color  for  usury,  upon  loans  which 
were  stipulated  not  to  be  required,  but 
which  were  in  fact  required  and  made, 
from  the  beginning  to  the  end  of  this 
business.  But  this  question,  i.  e.,  whether 
color  or  not,  was  a  question  for  the  con- 
sideration of  the  jury,  and  to  their  con- 
sideration it  was  fully  left,  with  a  strong 
intimation  of  opinion,  on  the  part  of  the 
judge,  that  the  transaction  was  colorable, 
and  the  commission  of  course  usurious. 
The  jury  have  drawn  a  different  con- 
clusion, and  which  conclusion,  upon  the 
view  they  might  entertain  of  the  facts, 
they  were  at  liberty  to  draw ;  and  they 
having  done  so,  for  the  reasons  already 
stated,   we  do  not  feel  ourselves,  as  a 
court  of  law,  and  acting  according  to  the 
rules  by  which  courts  of  law  are  usually 
governed  in  similar  cases,  at  liberty  to  set 
aside  that  verdict  and  grant  a  new  trial." 
(z)  Andrews   v.  Pond,    13  Pet-  65; 
Buckingham  v.  McLean,  13   Howard, 
152;  Merrittt'.  Benson,  10  Wend.  116; 
Williams  v.  Hance   &    Mott,'?  Paige, 
.')81 ;  Ontario  Bank  v.  Scherraerhorn,  10 
Paige,  110;  Cuyuga  County  Bank    v. 
Hunt,  2  Hill,  6.35;    Holford  v.  Blatch- 
ford.  2  Sandf  Ch.  149  ;  Cuvlcr  v  .San- 
ford,  13  Barb.  339;  Commercial  Bank 


414  THE  LAW  OF  CONTRACTS.  [PART  II. 

a  larger  sum  than  legal  interest  on  the  amount,  until  the  day 
of  the  maturity  of  the  bill,  without  the  transaction  being 
usurious,  (rt)  because,  in  fact,  it  is  no  loan,  but  a  voluntary 
anticipation  of  a  payment. 

SECTION  X. 

OP   A   CHARGE   FOR   COMPENSATION   FOR  RISK   INCURRED. 

As  the  lender  may  take  a  compensation  for  his  trouble  and 
services,  so  he  may  for  the  risk  that  he  runs.  By  this,  how- 
ever, is  not  meant  the  personal  risk  of  the  debtor's  ability  to 
pay;  for  nothing  of  this  kind  is  any  justification  whatever 
of  more  than  legal  interest.  But  where,  by  the  nature  or  the 
terms  of  the  contract,  the  repayment  of  money  loaned  is 
made  to  depend  upon  the  happening  of  contingent  events, 
there  the  lender  may  take,  beside  his  interest  for  the  sum 
loaned,  enough  more  to  insure  him  against  the  casualty 
which  might  destroy  his  claim ;  that  is,  so  much  more  as 
this  risk  of  loss  is  worth.  Nor  is  there  any  definite  standard 
for  this,  like  that  which  the  statutes  give  for  legal  interest; 
and  any  contract  for  loan  of  money  upon  extra  interest,  if 
the  principal  sum  were  actually  at  risk,  would  probably  be 
sanctioned  by  the  courts,  unless  it  amounted  by  its  excess  or 
its  circumstances,  to  fraud  and  oppression.  Upon  this  foun- 
dation rests  a  large  class  of  mercantile  contracts  of  universal 
use  and  great  importance,  known  by  the  names  of  loans  on 
bottomry  and  respondentia.     By  these  contracts,  money  is 

V.  Kolan,  7  IIow.  (Miss.)  508.     Sec  also  rough,  the  court  refused  to  grant  a  rule 

Leavitt  v.  Do  Launy,  4  Corns.  364.  to  set  the  nonsuit  aside.     "  Lord  Ellen- 

horoiKjIi,  C.  J.,  said,  that  to  constitute 
(a)  Barclay  qui  tarn  v.  Walmslcy,  4  usury  there  must  be  either  a  direct  loan 
East,  f)').  A  hill  for  30/.  was  drawn  on  and  a  taking  of  more  than  legal  interest 
the  defendant,  datedJuly  14,  1801,  and  for  the  forbearance  of  repayment,  or 
came  by  indorsement  to  Cutler.  The  bill  there  must  be  some  device  contrived  for 
was  payable  thirty  days  after  date,  and  the  purpose  of  concealing  or  evading 
was  presented  by  Cutler  to  the  defend-  the  appearance  of  a  loan  and  forbear- 
ant,  for  acceptance,  on  the  20th  August,  ance,  when  in  truth  it  was  such.  But 
when  it  was  agreed  that  the  defendant  here  was  no  loan  or  forbearance,  only 
should  pay  the  bill,  then  receiving  an  a  mere  anticij)ation  of  the  payment  of  a 
allowance  of  Grf.  in  the  pound  ;  and  the  debt,  by  the  party,  before  the  time  when 
defendant  accordingly  paid  29/.  5s.  to  by  law  he  could  be  called  ujion  for  it. 
Cutler,  who  thereupon  gave  him  the  That  the  defendant  had  been  guilty 
bill.  The  plaintiff  having  been  non-  of  very  improper  practice,  but  not  of 
suited,  at  the  trial,  before  Lord  Ellcnbo-  usury." 


CII.  VI.] 


OF    INTEREST    AND    USURY. 


415 


loaned  either  on  a  pledge  of  the  ship,  or  on  that  of  the  goods 
on  board  a  ship,  with  condition  that  if  the  ship  or  goods  be 
lost  nothing  of  the  principal  or  interest  shall  be  repaid,  but 
if  they  arrive  safe,  the  principal  shall  be  repaid  with  more 
than  lawful  interest,  (b)     And  a  bottomy  bond  may  be  made 


(h)  Soome  V.  Glcen,  Siderfin,27,  was 
debt,  upon  an  oblijjation,  tlic  condition  of 
•which  was,  tliat  if  a  certain  ship  should 
go  to  Surat,  in  the  East  Indies,  and  re- 
turn safe  to  London,  or  if  the  owner  or 
his  goods  sliould  return  safe,  tlien  the 
defendant  should  pay  the  plaintiff  the 
principal  money  loaned,  and  40/.  for 
every  100/. ;  hut  if  the  ship.  «S:c.,  should 
perish  by  unavoidable  casualty  of  sca,fire, 
or  enemies,  the  plaintitV  sliould  have  no- 
thing. The  question  wlicther  the  contract 
was  usurious, was  argued  by Earle,  for  de- 
fendant, who  agreed  that  if  the  condition 
had  been  solely  that  if  the  ship  should 
return  safe,  tiiis  would  have  been  a  good 
bottomry  contract,  and  an  apparent  haz- 
ard of  the  principal,  but  contended  that 
since  here  the  contingency  was  so  re- 
mote, that  if  the  owner  of  the  ship  or  his 
goods  returned  it  would  not  happen,  the 
contract  was  within  the  statute,  for 
otherwise  the  statute  of  usury  should  be 
of  no  effect.  But  it  was  replied  by  the 
counsel  for  the  plaintiffs  and  resolved  by 
the  court,  that  this  was  not  usury,  within 
the  statute,but  a  good  bottomry  contract. 
And  Chief  Justice  Bridgman  took  a 
diversity  between  a  bargain  and  a  loan, 
for  where  there  is  a  plain  and  square 
bargain  (as  here)  and  the  principal  haz- 
arded, this  cannot  be  within  the  statute 
of  usury.  But  otherwise  is  it  of  a  loan 
which  is  intended  where  tlie  principal  is 
not  hazarded.  And  there  are  apparent 
dangers  of  the  sea,  fire,  and  enemies, 
between  this  and  the  East  Indies,  which 
endanger  the  loss  of  the  principal.  And 
they  said  that  such  contracts,  called  bot- 
tomry, tend  to  the  increase  of  trade,  and 
that  on  which  many  orphans  and  widows 
live,  in  the  port  towns  of  this  realm. 
Judgment  by  the  whole  court  was  for 
the  plaintiff,  that  this  contract  is  not 
usurious.  Sharpley  v.  Hurrel,  Cro. 
Jac.  208,  was  debt  upon  an  obligation. 
"The  defendant  pleaded  the  statute  of 
usury ;  and  showeth  that  a  ship  went  to 
fish  in  Newfoundand,  which  voyage 
might  be  performed  in  eight  months, 
and  that  the  plaintiff'  delivered  fifty 
pounds  to  the  defendant,  to  pay  sixty 


pounds  upon  return  of  the  ship,  off 
Dartmouth;  and  if  the  said  ship,  by  oc- 
casion of  leakage  or  tempest,  should  not 
return  from  Newfoundland  to  Dart- 
mouth, then  the  defendant  should  pay 
tlie  principal  money,  viz.  fifty  pounds, 
only  ;  and  if  the  ship  never  returned, 
he  should  pay  nothing.  And  it  was 
held  by  all  the  court,  not  to  be  iisury, 
within  the  statute  ;  for  if  the  ship  had 
staid  at  Newfoundland  two  or  three 
years,  he  shoukl  have  i)aid  at  the  return 
of  the  ship  but  sixty  pounds ;  and  if 
the  ship  never  returned,  then  nothing  : 
so  that  the  plaintiff  ran  a  hazard  of  hav- 
ing less  than  the  interest,  Mhich  the  law 
allows,  and  possibly  neither  principal 
nor  interest."  See  also,  to  this  effect, 
Earl  of  Chesterfield  !>.  Jansen,  1  Wils. 
286,  1  Atk.  342,348,  1  Ves.  Sr.  143, 
148,  per  Burnett,  J.,  and  Sir. John  Strange. 
M.  R. ;  Eucher  v.  Conyngham,  2  Pet. 
Adm.  295  ;  the  Sloop  Mar}'.  1  Paine,  Cir. 
C.  Reps.  675  ;  Doderidge,  J.,  in  Roberts 
11.  Trcnayne,  Cro.  Jac.  508 :  Garret  v. 
Poote,  Comb.  133.  In  Thorndike  v. 
Stone,  11  Pick.  183,  the  plaintiff  brought 
an  action  upon  a  penal  bond,  tiie  con- 
dition of  which  recited  a  loan  of  Si  8,000, 
by  the  plaintiff,  to  the  defendant,  which 
sum  was  to  run  at  bottomry,  upon  the 
ship  Israel,  at  and  from  Boston,  to  and 
in  any  ports  and  places,  during  the  term 
of  three  years  from  the  date  of  the  bond, 
at  the  interest  and  premium  of  12  per 
cent,  per  annum  ;  and  declared  that  the 
defendant  should  also  pay  to  the  plain- 
tiff', during  the  three  years,  one  half  of 
the  gross  earnings  of  the  ship,  which 
should  go  in  discharge  of  the  principal 
sum  and  the  premium  due  upon  it ;  that 
the  defendant  might  make  any  further 
payments  within  the  three  years  ;  that 
u])on  all  such  payments  the  plaintift' 
should  thereafter  bear  the  risk  only  of 
the  amount  actually  due  on  the  bond, 
being  entitled  to  retain  all  payments 
made  to  him,  whether  the  ship  were  lost 
or  not,  and  the  ship  being  pledged  to 
the  plaintift'  to  secure  the  balance  due 
at  any  time ;  and  the  bond  was  to  be 
void  upon  the  defendants'  performance 


41G 


THE   LAW    OF    CONTRACTS. 


[part  II. 


on  time,  as  well  as  on  a  specific  voyage,  (r)  This  is  often 
—  or  certainly  may  be  —  used  as  a  means  of  lending  money  on 
usurious  interest.  If,  for  example,  the  loan  is  for  one  year,  at 
twelve  per  cent.,  six  per  cent,  being  legal,  and  the  lender  insures 
the  ship  (which  he  may  lawfully  do)  (d)  for  three  per  cent, 
he  gets  nine  per  cent,  for  the  use  of  his  money.  Still  these 
contracts  arc  sanctioned  by  the  law  and  usage  of  every 
mercantile  country,  and  are  protected  by  courts,  provided  the 
principal  and  interest  are  both  put  at  hazard,  by  the  very 
contract  itself.  For  this  is  the  one  condition  of  their  validity. 
This  same  principle  is  applied  to  some  land  contracts  ;  as 
if  one  buys  an  annuity,  or  rent  charge,  even  on  exorbitant 
terms,  it  is  still  no  usury.  From  the  authorities  on  this  sub- 
ject it  may  be  inferred,  that  the  grant  of  an  annuity,  at  any 
price,  for  an  uncertain  period,  either  upon  a  purchase  or 
a  loan,  is  not  usurious,  because  the  lender  or  purchaser  in- 
curs the  rislv  that  he  may  never  be  entitled  to  receive  the 
amount  loaned  or  paid.  If  the  transaction  be,  in  fact  and 
in  good  faith,  a  purchase,  any  contingency,  however  slight, 


of  the  agreement  and  the  payment  of 
any  sum  wliich  might  be  due  under  it, 
at  the  expiration  of  the  three  years.  It 
appeared  also  tliat  the  defendant  mort- 
gaged certain  real  estate  to  the  plain- 
tiif,  to  secure  the  performance  of  the 
condition  of  the  bond  ;  that  the  phiintitf 
procured  $10,000  insurance  on  the  ves- 
sel for  one  year,  at  five  and  a  half  per 
cent.,  and  that  the  defendant  also  insur- 
ed the  vessel  for  a  certain  voyage.  It 
was  contended,  for  the  defendant,  that 
this  was  not  a  bottomry  bond,  but  a 
contract  at  common  law,  and  usurious. 
Ptitman,  J.,  delivered  the  opinion  of  the 
court:  "We  are  all  clearly  of  opinion, 
that  the  objections  which  the  defendant's 
counsel  have  made  to  the  plaintiff's  re- 
covery, cannot  prevail.  It  is  said  that 
this  is  not  a  bottomry  bond,  but  a  usu- 
rious contract ;  and  the  court  are  to 
determine  whether  it  be  one  or  the 
other,  ujion  the  facts  which  are  agreed 
by  the  parties.  It  is  argued  that  the 
payment  of  the  money  borrowed,  is  se- 
cured in  such  a  manner  as  to  make  it 
a  certainty  that  the  plaiutifT  would  re- 
ceive his  money,  with  twelve  per  cent. ; 
that  it  is  secured  by  a  mortgage  of  real 
estate,  as  well  as  by  a  mortgage  of  the 
shij),   and   an   assignment  of  half  the 


freight  and  earnings  for  the  term  of  the 
loan  ;  and  it  is  further  objected,  that  the 
loan  is  upon  time,  and  not  for  a  voyage, 
as  it  is  usually  made.  But  the  answer 
to  tliese  objections  is,  that  if  the  ship 
should  be  lost  within  the  time  of  three 
years,  for  wiiicli  the  money  was  lent, 
tiie  ])laintiff  was  to  lose  all  the -money 
whicli  should  be  then  due  upon  the  iiond. 
It  is  the  essence  of  the  contract  of  bot- 
tomry and  respondentia,  that  the  lender 
runs  the  marine  risk,  to  be  entitled  to 
the  marine  interest.  The  rate  of  interest, 
and  the  maimer  of  securing  the  payment 
of  what  may  becomedue  upon  such  con- 
tract, are  to  be  regulated  by  tiie  i)arties. 
Tiiosc  considerations  are  not  to  be  re- 
garded by  the  court,  excepting  only  to 
ascertain  whether  they  were  colorably 
put  forth  to  evade  the  statute  against  usu- 
ry. We  do  not  perceive  any  thing  in  the 
facts  which  would  warrant  that  conclu- 
sion. If  the  sliip  had  been  lost  immedi- 
ately after  she  sailed,  it  is  perfectly  clear 
that  the  plaintiff  would  have  lost  all  his 
money." 

(r)  Thorndikci;.  Stnne,  11  Pick.  183, 
siijira. 

{<!)  Thorndikeu.  Stone,  11  Pick.  133, 
su]ira. 


en.  VI.] 


OP  INTEREST  AND  USURY. 


417 


will  prevent  the  contract  from  being  usurious ;  and  even  if 
the  annuity  granted  by  the  seller  be  so  large  that  a  court  of 
equity  will  set  it  aside  as  unconscionable,  yet  it  is  not  there- 
by usurious.  But  if  it  appears  that  a  loan  was  in  fact  in- 
tended between  the  parties,  and  the  form  of  an  annuity  was 
resorted  to  merely  as  the  shape  or  method  of  the  loan,  the 
contingency  must  now  be  real  and  substantial,  and  of  suffi- 
cient magnitude  ;  for  if  it  appears  to  be  so  slight  as  to  be 
merely  colorable,  or  such  that  the  probability  of  its  occur- 
rence could  not  have  been  for  any  material  purpose  within 
the  contemplation  of  the  parties,  this  shape  of  an  annuity 
will  not  protect  the  transaction  from  the  penalties  of  usury,  (e) 


(e)  Ilobcrts  v.  Tremoilc,  1  Kollc,  47 ; 
Fountain  v.  Grymes,  Cro.  Jac.  252, 
S.  C.  1  Biilstrodc,  36  ;  Floyer  i-.  Shcr- 
anl,  Anihler,  18;  Llovd  v.  Scott,  4  Pet. 
205;  Scott  V.  Lloydj  9  Pet.  418.  In 
Richards  v.  Brown,  Cowp.  770,  Lord 
Mansfield  treats  an  annuity  upon  the 
borrower'.s  life,  with  a  right,  on  liis 
part,  to  rcdcem  at  the  end  of  three 
montlis,  as  involving  only  the  contin- 
gency of  the  borrower's  dying  within 
that  three  inontlis  ;  and  after  showing 
thai  the  transaction  between  tlie  parties 
was  essentially  a  loan,  says,  "  It  is  true, 
there  was  a  contingency  during  the 
three  months.  It  was  that  whicii  occa- 
sioned the  doubt,  whether  a  contingency 
for  three  months  is  sufficient  to  take  it 
out  of  the  statute.  As  to  that,  the  cases 
have  been  looked  into,  and  from  them 
it  apjjcars,  that  if  the  contingency  is  so 
slight  as  to  lie  merely  an  evasion,  it  is 
deemed  colorable  only,  and  consequent- 
ly not  sufficient  to  take  it  out  of  the 
statute.  Here  the  borrower  was  a  hale 
young  man,  and  therefore  we  are  of 
opinion  that  there  was  no  substantial 
risk,  so  as  to  take  this  case  out  of  the 
statute."  But  it  seems  that  where  the 
right  to  redeem  is  optional  with  the  sel- 
ler, the  purchase  is  not  usurious,  because 
the  purchaser  or  lender  cannot  compel 
a  repayment  of  his  principal,  and  it  is 
therefore  at  risk.  King  v.  Drury,  2  Le- 
vinz,  7  ;  Murray  v.  Harding,  2  Blacks. 
859.  See  also  Bai/lei/,  J.,  White  v. 
White,  3  B.  &  Cr.  273  ;  Chippindale  v. 
Thurston,  1  M.  &  Mai.  411.  Since 
the  introduction  of  life  insurance,  the 
purchase  of  an  annuity  may  be  made  the 
means  of  eftecting  a  "loan  at  more  than 


legal  interest,  and  that  certainly  secured, 
as  the  purchaser  may  guard  against  the 
contingency  of  the  grantor's  death,  by 
effecting  insurance  on  his  life.  Hurd- 
wicke,  L.  C..  Lawley  v.  Hooper,  3  Atk. 
278;  Blachstone,  J.,  Murray  v.  Harding, 
2  Blacks.  865.  And  where  an  annuity 
was  granted  for  four  lives,  with  a  cove- 
nant that  the  grantor,  within  thirty  days 
after  the  expiration  of  the  third  life, 
should  insure  the  principal  sum  upon 
the  life  of  the  survivor,  the  covenant 
was  held  not  to  make  the  transaction 
usurious.  /?i  re  Naish,  7  Bing.  150.  See 
also  Morris  v.  Jones,  2  B.  &  Cr.  232 ; 
Holland  v.  Pclham,  575,  1  Tyr.  438.  It 
was  anciently  decided  that  annuities  for 
terms  of  years,  by  whicli  it  was  evident 
that  eventually  more  than  the  principal 
sum  and  legal  interest  would  be  paid, 
were  not  usurious,  being  merely  pur- 
chases. Fuller's  case,  4  Leonard,  208  ; 
Symonds  v.  Coekerill,  Noy,  151;  Cot- 
terel  v.  Harrington,  Brown  &  Golds, 
180  ;  King  v.  Drury,  2  Lev.  7  ;  Twisden, 
J.,  in  Kowe  v.  Bellaseys,  1  Sid.  182. 
But  in  Doe  v.  Gooch,  3"'B.  &  Aid.  666, 
upon  Sir  James  Scarlett's  saying,  that  if 
a  person  have  an  annuity  secured  on  a 
freehold  estate,  with  a  power  of  re- 
demption, such  power  will  not  make  the 
bargain  usurious,  Bayley^  J.,  remarked, 
"  In  that  case  the  principal  is  in  haz- 
ard, from  the  uncertain  duration  of  life. 
Here  it  is  in  the  nature  of  an  annuity 
for  years,  and  there  is  no  case  in  which 
such  an  annuity  has  been  held  not  to  be 
usurious,  where,  on  calculation,  it  ap- 
peared that  more  than  the  principal, 
together  with  legal  interest,  is  to  be  re- 
ceived."    And  where  an   annuity  was 


418 


THE   LAW   OF    CONTRACTS. 


[part  II. 


It  has  been  held  that  loans,  of  which  the  repayment  is  made 
to  depend  on  the  life  of  the  parties,  come  within  the  same  prin- 
ciple. (/)  So  also  with  regard  to  loans  to  be  repaid  on  the 
death  of  a  party,  or  post-obit  contracts,  which,  even  if  exces- 
sive and  oppressive,  and  on  that  ground  avoided  in  equity, 
are,  nevertheless,  not  usurious,  (g-) 


granted  for  11^  years,  payable  half  year- 
ly.  the  seller  giving  twenty-three  promis- 
sory notes  for  the  hall'  yearly  payments  ; 
and  it  appeared  in  evidence,  that  these 
payments  would  pay  the  purchase-money 
of  the  annuity,  and  interest,  at  nearly 
12/.  per  cent,  per  annum  ;  the  blaster  of 
the  Bolls  said,  '•  With  respect  to  this 
question  of  usury,  I  sliall  not  refer  to 
the  old  cases  which  have  been  cited. 
This,  in  effect,  is  an  agreement  to  repay 
the  principal  sum  of  4,000/.,  with  inter- 
est, by  twenty-three  instalments,  and  as 
it  appears  that  the  interest  thus  paid 
will  exceed  legal  interest,  the  transac- 
tion is  plainly  usurious." 

(/)  In  Burton's  ease,  5  Coke,  69,  Pop- 
ham,  C.  J.,  said,  "  If  A.  comes  to  B.  to 
borrow  100/.,  B.  lends  it  him  if  he  will 
give  him  for  the  loan  of  it  for  a  year, 
20/.,  if  the  son  of  A.  be  then  alive-  This 
is  usury,  within  the  statute  ;  for  if  it 
should  be  out  of  the  statute,  for  the  un- 
certainty of  the  life  of  A.,  the  statute 
would  be  of  little  effect ;  and  by  the 
same  reason  that  he  may  add  one  life, 
he  may  add  many,  and  so  like  a  raath- 
eniatical  line  which  is  divisibilis  in  sem- 
per dli-isibilia."  In  accordance  with 
this  principle,  Clayton's  case,  .5  Coke, 
70,  in  which  Reighnolds  lent  Clayton 
30/.  for  six  months,  to  be  paid  at  that 
time  33/.,  if  Heighnold's  son  should  be 
then  alive,  if  not,  to  be  paid  27/ ,  was 
decided  to  be  usurious.  Button  v. 
Downham,  Cro.  Eliz.  043,  was  simi- 
larly decided  ;  but  in  Bedingficld  v.  Ash- 
ley, Cro.  Eliz.  741,  in  which  Ashlc}-, 
for  100/.,  covenanted  with  Gower  to  i)ay 
to  every  one  of  Gowcr's  five  daughters, 
who  should  be  alive  in  ten  years,  80/., 
this  transaction  was  resolved  by  all  the 
judges  not  to  be  usury ;  "  for  it  is  a 
mere  casual  bargain,  and  a  great  liazard, 
but  that  in  ten  years,  all  the  daugh- 
ters, or  some  of  them  will  be  dead  ;  and 
if  any  of  them  be  not  alive,  he  shall  save 
thereby  80/.  But  if  it  were  j,liat  he 
should  pay  400/.  at  the  end  often  years, 
if  any  of  tlicm  were  alive,  it  were  a 
greater  doui)t.     Or  if  it  had  been  tliat  he 


should  pay,  at  the  end  of  one  or  two 
years,  300/.,  if  any  of  the  said  children 
were  alive,  that  had  been  usury  ;  for  in 
probabilit}'  one  of  them  would  continue 
alive  for  so  short  a  time,  but  in  ten 
years  are  "many  alterations."  And  in 
Long  &  Wharton's  case,  3  Keble,  304, 
which  was  "  Error  of  judgment,  in  debt, 
on  obligation  to  pay  1 00/.,  on  marriage  of 
the  daughter,  and  if  either  jjlaintilf  or 
defendant  die  before,  nothing.  The  de- 
fendant pleads  the  statute  of  usury,  and 
that  this  was  for  the  loan  of  30/.  before 
delivered,  to  which  the  plaintiff  demur- 
red, and  per  curiam,  this  is  plain  bot- 
tomry, and  judgment  afhrmcd." 

{[/)  The  great  case  on  the  validity  of 
post  obit  bonds,  is  that  of  Chesterfield  v. 
Janscn,  1  Atkins,  301,  2  Ves.  125,  1 
Wil.'^on,  28G.  The  defendant  paid  Mr. 
Spencer,  testator  of  the  plaintiffs,  5,000/., 
and  took  from  him  a  bond  for  20,000/., 
conditioned  for  the  payment  of  10,000/., 
to  the  defendant,  at  or  within  some  short 
time  after  the  death  of  the  Duchess  of 
^Marlborough,  in  case  Mr.  Spencer  sur- 
vived her,  but  not  otherwise.  In  six 
years  the  Duchess  died,  and  shortly 
after  her  death  Mr.  Spencer  renewed 
the  bond  of  20,000/.,  to  the  defendant, 
with  a  condition  for  the  payment  of  the 
10,000/.  on  the  next  April,  —  gave  the 
defendant  a  warrant  of  attorney  to  con- 
fess judgment  against  him,  and  about  a 
year  after  this  paid  2,000/.  on  tlie  new 
bond.  Two  years  after  the  Duchess  of 
Marlborough's  death,  Mr.  Spencer  died, 
and  his  executors  brought  this  bill  to  be 
relieved  against  the  bond  to  the  defend- 
ant, as  unreasonable  and  usurious,  be- 
ing independent  of  any  other  contingencj' 
than  that  of  a  grand.son  of  thirty  years 
of  age  surviving  a  grand  mother  of  eighty, 
so  that  by  reason  of  the  great  age 
and  infirmity  of  the  Ducbess,  and  her  • 
consequent  approaching  death,  the  re- 
quiring 10,000/.  for  the  forbearance  of 
5,000,  was  more  than  legal  interest.  The 
cases  upon  the  subject  of  loans,  upon 
contingencies,  post  obits,  iScc.,  down  to  the 
time  of  this  case,  were  collected  and  cited 


en.  Yi.] 


OF   INTEREST   AND    USURY. 


419 


SECTION  XI. 
CONTRACTS   IN   WHICn   A   LENDER   BECOMES   PARTNER. 

It  is  often  attempted  to  apply  the  same  principle  to  the 
law  of  partnership,  and  to  protect  contracts  in  which  money 
has  been  loaned  from  the  imputation  of  usury,  by  the  de- 
fence that  the  person  advancing  the  money  becomes  a 
partner  with  the  person  receiving  it,  and  liable  as  such  for 
the  debts  of  the  partnership,  and  that,  therefore,  there  is  a 
substantial  risk,  which  protects  the  transaction  from  being 


by  the  able  counsel  employed  ;  and  Lord 
Chancellor  IlardwicLe,  Sir  John  Strange, 
M.  ]{.,  and  Mr.  Justice  Burnett,  decided 
that  tlie  loan  to  Mr.  Spencer  being  upon 
a  contingency,  whereby  the  principal  was 
bona  fide  hazarded,  was  not  usurious ; 
and  although  they  would  have  relieved 
against  the  bargain  as  unconscionable, 
had  it  not  been  confirmed,  they  held 
that  the  execution  of  the  new  bond,  by 
Mr.  Spencer,  and  a  part  payment  upon 
it,  confirmed  and  ratified  the  agreement, 
so  that  they  could  not  relieve.  It  will 
be  noticed  that  in  this  case  there  was  a 
possibility,  in  case  Mr.  Spencer  should 
die  before  the  Duchess,  that  no  part  of 
the  money  lent  would  be  repaid ;  and 
therefore  "this  case  does  not  go  to  the 
extent  of  deciding  that  where  there  is  a 
contract  to  pay  money,  at  all  events, 
upon  the  death  of  a  party,  such  contract  is 
good  by  reason  of  the  uncertainty  of  the 
amount  that  will  eventually  be  received. 
But  in  Batty  v.  Lloyd,  1  Vernon,  141, 
the  defendant  had  agreed  with  the  plain- 
tiff, who  had  an  estate  fall  to  her,  after 
the  death  of  two  old  women,  to  give  her 
350/.,  in  consideration  of  receiving  700/. 
at  the  death  of  the  two  women,  which 
money  the  plaintiff"  was  to  secure  by  a 
mortgage  of  her  reversionary  estate. 
Both  the  women  died  within  two  years 
afterwards  ;  and  the  plaintiff",  being  sorry 
for  her  bargain,  brought  this  bill  to  be 
relieved.  Lord  Keeper  North  said,  '•  I 
do  not  see  any  thing  ill  in  this  bargain. 
I  think  the  price  was  of  full  value,  though 
it  happened  to  prove  well.  Suppose 
these  women  had  lived  twenty  years 
afterwards,  could  Lloyd  have  been  re- 
lieved by  any  bill  here  ?  I  do  not  believe 


you  can  show  me  any  such  precedent. 
What  is  mentioned  of  the  plaintiff's  ne- 
cessities, is,  as  in  all  other  cases — one 
that  is  necessitous  must  sell  cheaper  than 
those  who  are  not.  If  I  had  a  mind  to 
buy  of  a  rich  man  a  piece  of  ground 
that  lay  near  mine,  for  my  convenience, 
he  would  ask  me  almost  twice  the  value ; 
so  where  people  are  constrained  to  sell, 
they  must  look  not  to  have  the  fullest 
price ;  as  in  some  cases  that  I  have 
known,  when  a  young  lady  that  has  had 
10,000/.  portion,  payable  after  tlie  death 
of  an  old  man,  or  the  like,  and  she  in  the 
meantime  becomes  marriageable,  this 
portion  has  been  sold  for  6,000/.,  present 
money,  and  thought  a  good  bargain  too. 
It  is  the  common  case  ;  pay  me  double 
interest  duiing  my  life,  and  you  shall 
have  the  principal  after  my  decease." 
In  Lamego  v.  Gould,  2  Burr.  71.5,  de- 
fendant gave  plaintiff'  this  writing,  re- 
ceiving therefor  two  guineas;  "Memor- 
andum. In  consideration  of  two  guineas, 
received  of  Aaron  Lamego,  Esq.  &c.  I 
promise  to  pay  him  twenty  guineas,  upon 
the  decease  of  my  present  wife,  Anne 
Gould."  The  question  was  whether  it 
was  usurious,  the  woman  being  at  the 
time  seventy  years  of  age.  The  court  held 
it  no  usurious  loan  but  only  a  wager. 
Mathews  v.  Lewis,  1  Anstr.  7,  was  a  ease 
in  which  Lewis  upon  a  loan  of  1,000/. 
gave  pos<  obits  for  3,200/.,  payable  on  the 
death  of  either  Lewis's  mother  or  grand- 
mother, from  whom  he  was  entitled  to 
large  property,  and  his  grandmother 
being  eighty-seven  years  of  age.  The 
court  said,  "This  is  nothing  like  usury. 
It  is  a  catching  bargain,  an  extortioning 
post  obit,  but  no  usury." 


420  THE  LAW  OF  CONTRACTS.  [PART  II. 

usurious,  although,  by  the  terms  of  the  agreement,  the  party 
is  to  receive  more  than  legal  interest  for  his  money. 

In  reference  to  this  question  it  seems  in  general  clear, 
that  where  a  contract  of  partnership  is  expressly  entered  into 
by  the  parlies,  or  where  money  is  advanced  and  the  party 
advancing  it  reserves,  instead  of  interest,  a  certain  proportion 
of  the  profits  of  a  certain  business,  so  that  in  the  construc- 
tion of  law  a  partnership  may  fairly  be  presumed  to  be  in- 
tended, and  the  contract  is  in  neither  case  intended  as  a  de- 
vice to  cover  a  usurious  loan,  then  the  contract  lacks  that 
essential  element  of  the  crime  of  usury,  —  a  loan  of  money, — 
and  therefore  no  usury  is  committed ;  although  the  partner 
advancing  the  money  may  and  probably  will  receive  more 
than  would  amount  to  legal  interest  upon  it.  (A) 

And  if  it  be  clear  that  a  partnership  was  bond  fide  in- 
tended, and  that  there  was  no  contrivance  to  cover  a  loan,  there 
is  no  usury,  although  one  of  the  partners  covenants  that  he 
will  bear  all  the  losses  and  pay  the  other,  as  his  share  of  the 
profits,  a  certain  sum,  which  amounts  to  more  than  legal  in- 
terest on  that  other  share  in  the  capital ;  for  here  is  still  no 
loan  of  money,  [i) 

But  where  the  contract  is  in  the  form  or  under  the  disguise 
of  a  partnership,  a  loan  of  money,  and  for  its  use  the  borrower 
contracts  to  pay  legal  interest,  and  also  a  certain  proportion 
of  the  profits  of  a  tra,de  or  business,  this  is  usurious,  although 
the  lender  may  be  made  liable  for  the  debts  incurred  by  the 
borrower  in  the  course  of  the  trade  or  business,  because  if  he 
is  so  compelled  to  pay  he  still  has  his  remedy  over  against 
the  borrower,  and  therefore  runs  no  ultimate  risk,  except  that 
of  the  borrower's  insolvency,  which,  as  we  have  seen,  is  not 
enough,  {j ) 

[Ii]  Fcrcday  I'.  Ilortlcrn,  1  Jac.  l44  ;  Aid.  954;   Fcrcday  v.  llordcin,  1  Jac. 

Monisset  v.  King,  2  Burr.  891.  144. 

(i)  Enderbcy  y.  Gilpin,  5  Moore,  571 ;         ( /)  Morse  v.  Wilson,  4  T.  R.  353; 

S.  C.  in  error,  1  D.  &  11.   570,  5  B.  &  Ilustou  v.  Moorhcad,  7  Peun.  45. 


CH.  VI.]  OF  INTEREST  AND  USURY.  421 

SECTION  XII. 
OF  SALES  OF  NOTES  AND  OTHER  CHOSES  IN  ACTION. 

It  is  quite  settled  that  negotiable  paper  may  be  sold  for 
less  than  its  face,  and  the  purchaser  can  recover  its  whole 
amount  from  the  maker  when"  it  falls  due,  although  he  there- 
by gets  much  more  than  legal  interest  for  the  use  of  his 
money;  and  this  principle  is  extended  to  bonds  and  other 
securities  for  money  loaned. 

The  reason  on  which  the  rule  "rests  is  obvious.  For  such 
paper  is  property ;  and  there  is  no  more  reason  why  one 
may  not  sell  notes  which  he  holds,  at  a  price  made  low  either 
by  doubts  of  the  solvency  of  the  maker  or  by  a  stringency  in 
the  money  market,  than  why  he  should  not  be  able  to  sell 
his  house  or  his  horse  at  a  less  than  the  average  price.  But 
the  purchase  must  be  actual  and  made  in  good  faith,  and  not 
merely  colorable,  in  order  to  give  efficacy  to  an  usurious 
contract.  For  if  the  mere  form  of  a  sale  was  sufficient,  it  is 
obvious  that  the  usury  laws  would  lose  all  their  force ;  for 
the  lender  need  only  refuse  to  lend  at  all,  and  propose  instead 
to  buy  the  note  of  the  borrower.  It  is,  therefore,  important 
to  discriminate  between  these  two  cases;  that  is,  between  a 
loan,  in  the  form  of  a  sale,  and  an  actual  sale  and  purchase. 
And  this  discrimination  is  very  difficult ;  nor  is  it  quite  certain 
from  authority,  what  rules  govern  this  question.  We  may 
say  that  if  the  payee  lends  and  the  borrower  gives  his  note 
for  legal  interest,  the  lender,  having  thus  acquired  the  note, 
may  afterwards  sell  it  for  the  most  he  can  get,  and  it  is  obvious 
that  the  lender  takes  nothing  usurious  ;  and  if  he  loses  by  the 
second  transaction,  and  the  purchaser  gains,  it  is  a  loss  and 
gain  on  a  purchase,  and  not  on  a  loan.  And  both  on  au- 
thority and  on  general  principles,  it  would  seem  that  the  first 
owner  of  the  note  must  pay  for  its  full  amount,  or  else,  though 
he  may  say  he  purchases  it  of  the  maker,  iu  fact  he  only  lends 
on  his  security,  and  that  usuriously.  (k)     Again,  if  this  be 

(/>•)  The  following  American  authori-  usury  between  the  original  parties,  so 
ties  determine  that  where  a  note  has  that  the  payee  has  acquired  a  legal  right 
been  fairly   executed,  and  there  is  no    to  sue  the  maker  upon  the  note,  he  may 

VOL   II.  36 


422  THE   LAW   OF    CONTRACTS.  [PART   II. 

true  where  the  parties  deal  directly  together,  it  should  be 
equally  true  where  they  deal  through  an  agent.  And  then  it 
would  follow,  that  if  the  maker,  whom  we  may  suppose  to 
be  one  of  our  railroad  corporations,  issues  its  notes  or  bonds, 
and  gives  them  to  a  broker,  to  raise  money  on  them,  for  the 
use  of  the  corporation,  and  the  broker  sells  them  to  his  cus- 
tomers for  less  than  the  face,  or  par  value,  such  a  transac- 
tion would  be  a  loan,  and  an  usurious  loan,  from  those  cus- 
tomers to  the  torporation.  And  if  the  paper  was  indorsed 
or  assigned  to  any  person,  without  consideration,  and  with- 
out giving  any  ownership  of  the  paper  to  him,  and  only  for 
the  purpose  of  facilitating  the  raising  of  money,  or  conceal- 
ing the  real  character  of  the  transaction,  it  would  still  fall 
within  the  same  principles,  and  be  only  a  loan.  It  is  in  this 
way  we  should  speak  of  this  question,  on  principle ;  but  in 
practice  it  becomes  complicated  and  embarrassed  by  the 
further  question,  how  far  the  knowledge,  understanding,  or 
intention  of  the  party  who  gives  the  money  on  the  paper, 
goes  to  determine  whether  it  be  a  purchase  or  a  loan.  For 
example,  if,  in  the  last  case  supposed,  he  who  advances  the 
money  becomes  the  first  owner  of  the  note,  does  this  of  itself 
make  it  an  usurious  loan  to  the  maker,  or  may  the  advancer 
of  the  money  insist  upon  the  fact  that,  in  point  of  form,  he 
purchased  the  paper,  and  that  he  did  not  in  reality  know, 
and  could  not  have  inferred,  from  any  of  the  circumstances 
of  the  case,  that  the  party  from  whom  he  bought  was  not 
either  the  owner  or  the  agent  of  the  owner  of  the  note,  for 
valuable  consideration.  Many  reasons  would  lead  us  to 
favor  this  defence  ;  and  to  hold  that  although,  if  a   note  be 


then  iHsposc  of  it,  at  any  rate  of  discount  v.  Keacli,  2  Conn.  179  ;  Tuttlc  v.  Clark, 

from  its  face,  and  the  purchaser  will  have  4   Conn.   l.'jS;  King  y.  Jolinson.  3  Mc- 

a  rif,'lit  to  enforce  it  for  its  full  amount  Cord,  365  ;   Musgrovc  i:  Gibbs,  1  Dall. 

against  the  maker.     Nichols  ?;.  Fearson,  217  :  Wycoff'  v.  Longhead,  2  Dall.  92; 

7  Pet.  107  ;  Moncurc  r.  Dcrmott,  laTet.  French   v.    Grindle,    l.'i    IMainc,     163; 

34. '3 ;   Jones,  Ch.,   I'owell  v.  Waters,  S  Farmer  ?;.  Scwall,  16  Maine,  456  ;  Lane 

Cow.  685  ;  Rice  v.  Mather,  3  Wend.  65  ;  r.  Steward,  20  Maine,  98  ;    llansbrough 

Cram  r.  Hendricks,  7  Wend.  569  ;  Munn  v.  Baylor,  2  Mnnf  36 ;    Shackleford  v. 

V.   Commission  Co.  15  Johns.  55  ;    Ra-  Morriss,  1  J.  J.  Marsh,  497  ;  Oldham  v. 

pclyc  V.  Anderson,  4  Hill,  472 ;  Holmes  Turner,  3  R.  Mon.  67  ;  Jletcalf  c.  I'ilcher, 

V.  William,   10  Taige,  320;  Holford  v.  6   R.  Mon.  529;    May  r.  Campbell,  7 

Rlatchford.  2  Sandf  Ch.   149;    Ingalls  Hum])h.  451;   Saltmarsh  r.  Planters  & 

V.  Lee,  9  Barb.  647.     Parsou.%   C.   J.,  Merclumts  Bank,  17  Ala.  768. 
Churchill  v.  Suter,  4  Mass.  162  ;  Lloyd 


CH.  VI.]  OF  INTEREST  AND  USURY.  423 

given  upon  the  reception  of  much  less  than  its  amount,  and 
be  therefore  usurious  as  between  the  first  parties,  it  carries 
this  taint  with  it  into  the  hands  of  subsequent  bond  fide 
holders,  yet  because,  in  order  to  constitute  a  usurious  contract 
of  this  kind  a  similar  intent  must  cooperate  in  both  parties 
to  the  loan,  the  fact  that  the  maker  of  the  note  or  bond  and 
the  agent  to  whom  he  delivered  it  to  dispose  of,  might  in- 
tend, in  contemplation  of  law,  to  commit  usury,  would  not 
supply  the  want  of  such  intent  on  the  part  of  the  party  in- 
tending to  make  a  purchase,  and  who  had  no  knowledge  or 
intention  of  a  loan.  On  the  whole,  therefore,  we  are  inclined 
tq  give,  as  the  prevailing  rule,  that  where  one  supposes  him- 
self to  be  purchasing  negotiable  paper  of  an  owner,  and  is 
without  notice  to  the  contrary,  either  actual  or  derivable  from 
the  xjircumstances  of  the  case,  this  advancer  of  the  money 
would  have  all  the  privilege  and  safety  of  a  purchaser.  [I) 
There  are  no  authorities  within  our  knowledge,  which,  upon 
a  fair  construction,  go  beyond  this;  although  it  may  be  true 
that  some  of  those  which  we  have  above  cited  might  almost 
justify  the  conclusion,  that  if  the  paper  be  purchased  in  form, 
the  maker  cannot  object  on  the  ground  that  it  was  a  usurious 
loan.  But  it  is  not  easy  to  recognize  any  principles  which 
would  go  further  than  to  extend  the  attributes  of  a  purchase  to 
any  party  who  believed  in  good  faith  that  he  was  a  purchaser. 
In  speaking  thus  far  of  the  sale  of  notes,  we  have  had 
particular  reference  to  those  which  were  transferred  by  de- 
livery or  by  indorsement  without  recourse.  Another  question 
has  been  raised,  however,  when  the  transfer  was  made  by  an 
indorsement  which  left  the  indorser  liable  if  prior  parties  did 
not  pay  ;  and  this  question  is,  whether  the  transaction  did  not 
then  become  usurious,  if  the  note  was  sold  for  less  than 
its  face,  because  the  indorser  would  then  be  bound  to  pay  a 
larger  sum  than  that  which  he  had  received,  with  lawful  in- 
terest upon  it.  The  cases  upon  this  subject  are  somewhat 
conflicting,  but  the  difficulty  has,  we  think,  arisen  from  dis- 

(/)  This  view  is  supported  by  Law's  Shackleford  v.  Morriss,  1  J.  J.  ]\Iarsh. 
Exrs.  V.  Sutherland,  5  Gratton,  357;  497  ;  Hansbrough  ?;.  Baylor,2  Mnnf.  36; 
Whitworth   v.   Adams,   5   Rand.    333;     Holmes  r.  Williams,  10  Paiyc,  326. 


424  THE  LAW   OF   CONTRACTS.  [PART  II. 

regarding  the  peculiar  character  of  negotiable  paper,  and 
also  from  forgetting  that  the  whole  law  of  usury  is,  in  its 
nature,  penal,  and  therefore  to  be  strictly  construed.  If  one 
transfer  a  note  by  indorsement,  he  does  two  things  ;  he  trans- 
fers the  note,  and  he  also  becomes  liable  for  its  payment;  but 
the  latter  is  incidental  to  the  former.  The  substance  of  the 
transaction  is  a  transfer  of  the  property  in  the  note,  a  sale, 
and  nothing  more  than  a  sale;  and  therefore  we  say  that  the 
price  paid  has  nothing  to  do  with  the  question,  as  one  of 
usury.  But  besides  this,  it  is  important  to  observe  that 
such  a  transaction  can  be  made  usury  only  by  a  very  large 
construction  of  that  word  ;  no  money  is  loaned  or  borrowed, 
or  forborne,in  any  way  whatever  ;  it  cannot  therefore  be  usury, 
within  any  accuracy  of  interpretation.  We  do  not  mean  to 
say,  of  course,  that  actual  and  intended  usury  could  be  suc- 
cessfully covered  by  a  mere  disguise  of  this  kind.  In  case 
of  such  an  attempt  it  would  be  declared  a  usurious  loan,  be- 
cause it  would  be  such,  and  would  have  the  effect  of  usury; 
but  if  it  were  a  bond  fide  sale  of  the  note,  the  indorsement, 
and  the  liability  derived  from  it,  would  not,  in  our  judgment, 
impart  to  the  transaction  a  usurious  character. 

A  further  question  may  then  be  raised;  if  the  holder  sues 
the  indorser,  can  he  recover  the  face  of  the  note,  or  only  what 
he  paid,  with  legal  interest?  We  are  of  opinion  that  he 
may  recover  the  amount  upon  the  face  of  the  note,  from 
his  indorser,  as  well  as  from  any  prior  party.  It  is  this 
amount  he  buys;  it  is  this  which  he  had  a  right  to  buy, 
and  which  the  indorser  had  a  right  to  sell,  and  a  right  to 
guarantee. 

By  some  authorities  it  has  been  held  that  the  indorsement 
of  the  note,  by  the  nominal  seller,  or  the  giving  of  security  in 
any  way  for  its  payment,  in  case  of  the  failure  of  the  party 
primarily  liable,  makes  the  transaction  usurious,  as  matter  of 
law.  These  cases  seem  to  proceed  upon  the  principle,  that 
there  is  no  substantial  reason  why  the  holder  of  the  paper 
should  dispose  of  it  for  less  than  its  face,  when  he  may  be 
called  upon  to  repay  its  full  amount;  and  therefore  the  trans- 
action must  be  regarded  as  intended  by  the  parties  to  be  an 


en.  VI.]  OF  INTEREST  AND  USURY.  425 

actual  loan,  upon  usurious  interest,  (m)  According  to  the 
weight  of  authority,  however,  where  there  is  sufficient  evi- 
dence that  the  transaction  was  a  sale,  and  not  a  covert  loan, 
the  fact  that  the  seller  indorsed  the  paper,  is  not  considered 
as  changing  the  character  of  the  contract,  and  making  it  usuri- 
ous. Nevertheless,  these  cases  seem  to  admit,  that  if  the 
purchaser  could  recover  from  the  seller  and  indorscr  the  full 
amount  of  the  face  of  the  paper  sold,  the  contract  would  be 
a  loan,  and  usurious;  and  they  therefore  decide  that  the 
purchaser  is  limited  in  his  action  against  the  seller  and  in- 
dorscr, to  a  recovery  of  the  amount  actually  paid  by  him, 
with  lawful  interest  thereon,  (w)  We  think,  however,  that 
these  cases  proceed  upon  a  wrong  principle,  and  the  courts 
seem  to  be  misled  by  a  difficulty  in  the  application  of  their 
principles  to  practice.  If  a  payee  of  a  note  actually  sell  it  to 
a  purchaser,  with  his  indorsement,  the  whole  transaction, 
upon  analysis,  will  be  found  to  be  this :  It  is  not  a  loan  of 
money,  but  the  purchaser  of  the  note  buys  a  right  to  sue  the 
maker  of  the  note,  and  also  an  engagement  for  value  on  the 
part  of  the  seller,  that  the  maker  shall  pay  the  face  of  the  note. 
There  is  no  more  loan  in  the  case,  than  in  the  sale  of  goods, 
with  a  warranty  that  they  shall  be  fit  for  the  purposes  for 
which  they  are  bought.  It  may  be  true  that  he  can  get 
much  more  for  the  note  if  he  indorses,  than  if  he  does  not; 
and  it  may  be  true  that  he  will  get  more  for  the  goods  if  he 
warrants  them,  thah  if  he  d(?es  not ;  but  in  neither  case  does 
this  circumstance  convert  the  sale  into  a  loan.  It  often  hap- 
pens that  the  seller  is  known  to  be  in  insolvent  or  very  preca- 
rious circumstances,  without  any  probability  of  being  able  to 
refund,  in  case  of  the  maker's  default ;  here  the  value  of  the 
paper  consists  of  the  indorser's  liability  to  pay ;  but  it  would  be 
difficult  to  show  that  even  this  transaction  was  essentially  a 
loan  to  the  indorser.     Undoubtedly,  a  usurious  transaction 

(rn)  Ballinger  v.  Edwards,  4  Ire.  Eq.  galls   v.  Lee,   9   Barb.  647 :  French  v. 

449;  M'Elwee  v.  Collins,  4  Dev.  &  B.  Grindlc,  15  Maine,  15;  Farmer  v.  Sew- 

209 ;    Wahcorlh,  Ch.,  Cram  v.  Hendricks,  all,  1 6  jNIaine,  456  ;  Lane  v.  Steward,  20 

7  Wend.  57.3.     Cowen,   J.,   Ilapclyc   v.  Maine,  98 :  Brock  t'.  Thompson,  1  Bai- 

Ander.son,  4  Hill,  472.  ley,  322.     See  also  Freeman  v.  Brittin, 

2  Harrison,   191;  Metcalf  u.  Tilcher,  6 

(n)  Cram  v.  Hendricks,  7  Wend,  569  ;  B.    Mou.    530  ;  May    v.    Campbell,    7 

Rapelye  v.  Anderson,  4  Hill,  472  ;  In-  Humph.  450. 

36* 


426  THE   LAW   OP   CONTRACTS.  [PART  II. 

might  seek  the  disguise  of  this  form  of  contract,  as  well  as  of 
any  other.  And  neither  this  nor  any  disguise  should  pro- 
tect it.  But  we  speak  of  actual  sales  of  notes  and  bills,  by 
indorsement,  in  good  faith.  And  of  these,  the  preceding  con- 
siderations have  led  us  to  the  conclusion  we  have  above 
stated.  We  go,  perhaps,  beyond  the  authorities,  but  not  be- 
yond the  practice;  and  we  cannot  but  think  that  the  rule  of 
law  should  be,  that  in  case  of  an  actual  sale  of  a  note,  at  a 
discount,  with  an  indorsement  by  the  seller,  the  indorser  should 
be  held  liable  for  the  full  amount,  on  the  maker's  default. 

These  considerations  lead  us  to  those  cases  where  one  in- 
dorses or  gives  accommodation  paper,  for  a  premium  paid 
him,  which  may  be  an  outright  sum,  or  a  percentage.  Such 
a  transaction  has  been  thought,  by  many  courts  and  judges,  to 
be  usurious,  if  the  sum  paid  exceed  six  per  cent,  on  the  notes 
indorsed  or  given  ;  but  we  think  it  is  not  so,  on  the  plain 
ground  that  a  man  may  sell  his  credit,  as  well  as  anything 
else  that  he  has,  and  may  sell  it  for  the  most  that  he  can  get. 

The  earlier  cases  on  this  subject  held  that  upon  a  sale  of 
one's  credit  in  this  manner,  the  party  indorsing  or  guarantee- 
ing, might  receive  a  compensation  for  so  doing,  provided  it 
did  not  exceed  lawful  interest  upon  the  amount  of  the  debt 
guaranteed,  or  the  credit  sold,  (o)  But  if  a  transaction  of 
this  kind  can  be  regarded  as  such  a  sale  of  credit  as  that  a 
price  may  be  taken  therefor  by  the  seller  as  his  payment,  we 
do  not  see,  upon  principle,  any  limit  to  thcamount  which  may 
be  taken,  other  than  belongs  to  all  sales.  When  a  party  in- 
dorses a  note,  or  guarantees  a  debt,  as  surety  for  another,  he 
actually  advances  no  money,  and  is  therefore  at  no  pecuniary 
loss,  until  compelled  by  reason  of  his  suretyship,  to  pay  the 
debt  for  which  he  was  bound.  If  he  pays  this,  the  law 
creates,  at  once,  an  obligation  upon  the  party  whose  debt  he 
pays,  to  reimburse  to  him  the  sum  he  pays  with  legal  in- 
terest. And  if  the  sum  originally  received  by  a  party  thus 
selling  his  credit,  is  to  be  considered  as  interest,  added  to  the 
amount  for  which  the  law  gives  him  this  obligation,  there  is 
a  larger  amount  secured  for  interest,  than  the  legal  interest, 

(o)  Day  V.  Dunham,  2  Johns.  Ch,  122;  Bullock  r.  Boyd,  1  Iloff.  Ch.  294; 
182;  Fanning  v.  Dunham,  5  Johns.  Ch.     Moore's  Exr.  v.  Vance,  3  Dana,  361. 


en.  VI.]  OF  INTEREST  AND  USURY.  42T 

whatever  be  the  amount  paid  for  the  credit ;  for  all  that  is 
paid  is  excess.  On  this  ground,  therefore,  the  sale  is  no 
better,  whether  more  or  lessi  is  paid.  But  if  the  transaction 
is  to  be  considered  as  a  sale  of  the  credit  of  the  party  indors- 
ing; which  credit  is  his  property,  to  dispose  of  as  he  pleases, 
and  property  which  the  purchaser  may  profitably  and  law- 
fully buy,  the  price  paid  and  received  must  be  considered  as 
entirely  independent  of  the  resulting  right  of  the  indorser  or 
guarantor  to  get  indemnity  if  he  can,  for  whatever  he  is 
obliged  to  pay.  It  is  then  no  loan,  but  a  sale,  which,  in  re- 
spect to  the  price  that  may  be  paid,  is  like  any  other  sale; 
and  this  view,  we  think,  is  sustained  by  the  later  and  better 
authorities,  (p) 

In  the  case  of  cross  notes,  where  A.  gives  his  note  to  B,, 
and  B.  gives  his  note  to  A.,  but  A.'s  credit  is  much  better 
than  B.'s,  and  it  is  a  part  of  the  bargain  that  the  notes  from 
B.  to  A.  shall  be  greater  than  the  notes  from  A.  to  B.,  or  that 
A.  shall  have  any  sum  by  way  of  a  premium  on  the  transac- 
tion ;  this  has  been  considered  usurious  ;  but  not,  as  we  think, 
on  sufficient  grounds.  Here,  as  before,  we  deem  it  a  lawful 
sale  of  one's  credit,  and  neither  borrowing  nor  lending,  nor 
forbearing  money  in  any  way.  {q)  We  repeat,  however,  the 
remark,  to  avoid  misconception,  that  we  speak  only  of  bond 
fide  transactions  of  this  kind,  and  not  of  those  which  are  used 
as  mere  pretences  for  actual  usury.  This,  however,  would 
generally  be  a  question  of  fact  for  the  jury,  and  not  a  ques- 
tion of  law. 


SECTION  XIII. 
OF    COMPOUND  '  INTEREST. 

Contracts  for  compound  interest  are  sometimes  said  to  be 
usurious,  but  this  may  not  be  considered  quite  certain.  We 
are  aware  of  no  case,  in  England  or  in  this  country,  in  which 

{p)  Sec  Ketchum  v.  Earlier,  4  Hill,  (7)  See  Dunham  v.  Gonld,  16  Johns. 

224;    More  v.   Howland,  4  Den.  204;  367;  Dry  Dock  Bank  r.  American  Life 

Dry  Dock  Bank  v.  American  Life  Ins.  Ins.  &  Trust  Co.  3  Coms.  344. 
&  Trust  Co.  3  Coms.  344. 


428  THE  LAW  OF  CONTRACTS.         [PART  II. 

a  contract  to  pay  compound  interest  has  been  held  usurious, 
so  as  to  become  totally  invalid,  or  in  which  the  actual  recep- 
tion of  compound  interest  has  been  held  to  be  a  commission 
of  the  crime  of  usury,  and  punishable  as  such.  Indeed,  it  is 
difficult  to  see  how  this  could  be  the  case.  If  A.  lend  to  B. 
one  hundred  dollars,  for  two  years,  at  six  per  cent,  legal  in- 
terest, payable  annually,  and  it  is  agreed  that  if  B.  does  not 
pay  the  interest  at  the  end  of  the  first  year,  it  shall  be  consi- 
dered as  principal,  and  added  to  the  amount  of  the  loan  from 
that  time,  (which  is  a  contract  for  compound  interest),  and 
the  interest  not  being  paid  annually,  A.  becomes  entitled  at 
the  end  of  the  two  years  to  receive,  and  does  receive,  under 
the  agreement,  one  hundred  and  twelve  dollars  and  thirty- 
six  cents,  instead  of  one  hundred  and  twelve  dollars,  the  prin- 
cipal and  simple  interest,  he  does  not  receive  more  than  after 
the  rate  of  six  dollars  per  year  for  the  forbearance  of  one 
hundred,  but  has  received  exactly  that  sum,  and  six  per  cent, 
legal  interest  upon  another  sum  which  B.  was  under  a  legal 
obligation  to  pay  him,  for  which  B.  might  have  been  sued, 
and  for  the  forbearance  of  which  he  has  agreed  to  pay  its 
legal  value.  Accordingly,  courts  have  not  attempted  to 
declare  such  contracts  usurious,  and  the  extent  to  which 
they  have  gone  is  that  of  refusing  to  enforce  a  contract  to 
pay  interest  thereafter  to  grow  due  ;  and  have  done  this,  not 
upon  the  ground  of  usury,  but  rather  as  a  "rule  of  public 
policy,"  because  such  agreements  "  savor  of  usury,"  and  "lead 
to  oppression."  (r) 

On  the  other  hand,  if  an  agreement  is  made  to  convert  in- 
terest already  due  into  principal,  or  if  accounts  between 
parties  are  settled  by  rests,  and  therefore,  in  effect,  upon  the 
principle  of  compound  interest,  which  may  be  done  by  an 
express  accounting,  [s)    or   under  a  custom   of  forwarding 

(r)  Orsulton  v.   Yarmouth,   2   Salk.  406 ;    Connecticut  v.  Jackson,  1  Johns. 

449;  Waring  I).  Cunliffe,  1  Vcs.  Jr.  99;  Ch.  13;  Wilcox  v.  Ilowland,  23  Pick. 

Chambers    v.    Goldwin,    9  Vcs.    271;  169. 

Dawes  V.  Pinner,  2  Camp.  486  n. ;  Doe  (s)  Orsulton  v.   Yarmouth,   2  Salk. 

V.  AVarrcn,    7  Greenl.  48;  Hastings  v.  449;    Tarleton  v.  Backhouse,  Cooper's 

Wiswall,  8  Mass.  4.'3.'j ;  Camp  ?\  Bates,  Ch.   Reps.    231;    Mowry  v.  Bishop,  5 

11    Conn.    487;    Mowrv   v.    Bishop,   5  Paige,  98 ;  Fobes  i-.  Canttield,  3  Ham. 

Paige,  98  ;   Childcrs  v.  Deane,  4  Hand.  18  ;  Childers  v.  Deane,  4  Hand.  406. 


/ 

en.  VI.]  OF  INTEREST  AND  USURY.  429 

accounts  quarterly,  half-yearly,  or  yearly,  to  the  debtor,  who 
acquiesces  in  them  by  his  silence  ;  (t)  these  transactions  are 
valid,  and  sanctioned  by  the  law  ;  and  such  a  method  of  com- 
putation is  sometimes  even  directed  by  courts,  (u)  If  corn- 
pound  interest  has  accrued,  even  under  a  prior  bargain  for  it, 
and  been  actually  paid,  it  cannot  be  recovered  back,  (v)  nor 
are  the  penalties  affixed  to  the  crime  of  usury  aimexed  to 
such  taking ;  and  if  a  note  be  given  for  such  payment,  the 
note  has  a  sufficient  legal  consideration  to  sustain  an  action 
upon  it.  (iv) 

We  are  not  sure  that  contracts  to  pay  interest  upon  in- 
terest may  not  derive  illustration  from  a  comparison  with 
those,  upon  which  the  law,  as  we  have  seen,  is  quite  well 
settled,  where  one  engages  to  pay  money  at  a  certain  time, 
and  then  binds  himself  to  pay  a  further  sum,  exceeding  in- 
terest, if  the  principal  sum  be  not  duly  paid;  this  is  certainly 
not  usurious.  One  of  the  reasons  for  this  rule  is,  that  the 
penalty  will  be  reduced,  in  equity,  to  the  amount  of  the  debt; 
but  another,  and  as  we  think,  the  principal  reason  is,  that 
the  debtor  may  pay  his  debt  when  it  is  due,  and  thus  avoid 
the  contract  of  penalty ;  so  that  there  is,  in  such  case,  no  ab- 
solute contract  for  the  payment  of  more  than  legal  interest. 
Now,  one  who  promises  to  pay  a  debt  at  a  certain  time,  and 
interest  to  be  compounded  as  it  falls  due,  can,  by  payment  of 
the  debt  or  of  the  interest  when  it  falls  due,  always  avoid  the 
compounding. 

These  differences  between  contracts  for  compound  interest 
and  usurious  agreements,  clearly  establish  that  the  former 
are  not  in  their  nature  the  same  with  the  latter.  If  they 
were  so,  a  contract  to  pay  compound  interest  might  render 
the  whole  agreement  into  which  it  was  introduced  invalid,  so 
that  not  even  the  principal  nor  simple  interest  could  be  re- 
covered, and  upon  the  actual  payment  of  compound  interest 
it  could  be  recovered  again,  and  no  subsequent  agreement 

(t)  Caliot   V.  Walker,  2  Anstr.  496  ;  (u)  See  vol.  1,  p.  103.  (6.) 

Eaton  V.  Bell  5  B   &  Aid.  34 ;  Mor-an  ,  ,  p^^^  ^  j)         3  ^^^  ^-^          ^q 

V.  Mather,  2  Vcs^  1  d  ;  Bruex^r.  Hunter  ^^;      ^  j^.^,^       5  p^i       gg^ 

3    Camp.  466 :  Moore   u.   VouKliton,  1  •'                 t-)           o  i 

Stark.  487;    Bainbridge   i-.  Wilcox,   1  (lo)  Otis  v.   Lindsay,!    Fairf.   316; 

Bald.  536.     See  also  rinhorii  v.  Tuck-  Wilcox  v.  Rowland,  23  Pick.  169;  Kel- 

iDgton,  3  Camp.  467.  logg  v.  Hickok,  1  AVcnd.  521. 


430 


THE  LAW   OF   CONTRACTS. 


[part  II. 


could  give  such  a  contract  any  validity  or  effect;  all  of  which 
we  have  seen  is  not  the  case. 

Upon  the  whole,  although  it  seems  to  be  well  settled,  that 
compound  interest  cannot  be  recovered,  as  such,  although 
it  be  expressly  promised,  (x)  we  are  inclined  to  think,  that 
the  only  rule  of  law  against  the  allowance  of  compound 
interest  is  this  ;  that  courts  will  not  lend  their  aid  to  en- 
force its  payment,  unless  upon  a  promise  of  the  debtor 
made  after  the  interest  upon  which  interest  is  demanded, 
has  accrued ;  and  this  rule  is  adopted,  not  because  such  con- 
tracts are  usurious,  or  savor  of  usury,  unless  very  remotely, 
but  upon  grounds  of  public  policy,  in  ordpr  to  avoid  harsh  and 
oppressive  accumulations  of  interest.  And  for  the  reason 
that  this  aversion  of  our  law,  to  allow  money  to  beg-ct  money, 
has  of  late  years  very  much  diminished,  we  do  not  think  it 
absolutely  certain,  that  a  bargain  in  advance  for  the  payment 
of  compound  interest,  in  all  its  facts  reasonable  and  free  from 
suspicion  of  oppression,  would  not  be  enforced  at  this  day, 
in  some  of  our  courts.  (?/) 

• 

(r)  Lord    Ossulston    v.    Lord    Yar-  it  has  been  held  that  interest  may  be 

mouth,  2    Salk.  449  ;  Waring  v.  Cun-  charged  upon  the  interest,  from  the  time 

lifife,  1  Ves.  Jr.  99  ;  Connecticut  u.Jaclc-  it  is  payable.     Kennon   v.   Dickens,  1 

son,  1  Johns.  Ch.  13  ■;  Mowryr.  Bishop,  Taylor,    231;    S.    C.  Cameron  &  Nor- 


5  Paige,  98  ;  Hastings  v.  Wiswall,  8 
Mass.  455  ;  Ferry  v.  Ferry,  2  Cush.  92; 
Kodes  V.  Blythe,  2  B.  Mon.  "336 ;  Chil- 
dcrs  r.  Dcane,  4  Rand.  406 ;  Doe  v. 
Warren,  7  Greenl.  48.  But  see  Pawling 
V.  Pawling,  4  Yeates,  220.  But  annual 
rests  in  merchants'  accounts,  are  allow- 
ed :  Stoughton  v.  Lynch,  2  Johns.  Ch. 
210,  214  ;  Barely  r."" Kennedy,  3  Wash. 
C.  C.  350 ;  but  not  after  mutual  deal- 
ings have  ceased.  Dcnnister  v.  Imhrie, 
3  Wash.  C.  C.  396,  402;  Von  Hcmert 
V.  Porter,  11  Mete.  210.   In  cases  where 


wood,  357  ;  Gibbs  r.  Chisolm,  2  Nott 
&  McCord,  38 ;  Singleton  v.  Lewis,  2 
Hill's  (S.  C.)  408;  Doig  v.  Barkley,  3 
Richardson,  125;  Peirce  v.  RoAve,  1  N. 
II.  179.  But  it  is  held  otherwise  in 
Ferry  v.  Ferry,  2  Cush.  92 ;  Doe  v. 
Warren,  7  Greenl.  48.  See  1  Ameri- 
can Leading  Cases,  341,  371. 

(y)  See  Woodburi/,J.,  Peirce  v.  Rowc, 
IN.  H.  183;  Pawling  v.  Pawling,  4 
Yeates,  220  ;  Kennon  v.  Dickens,  Tay- 
lor,  (1802,)   235;  Gibbs  v.  Chisolm,  2 


it  is  expressly  stipulated  tliat   interest    Nott  &  McCord,  38  ;  Talliaferro's  Exrs. 
shall  be  payable  at  certain  fixed  times,     v.  King's  Admr.  9  Dana,  331. 


"We  add  the  following  Table,  from  dcnscd  form,  of  the  laws  of  the  seve- 
the  Bankers'  Magazine,  for  January,  ral  States  in  relation  to  interest  and 
1855,  containing  a  statement,  in  a  con-     usury;  — 


Legal  Rate  of  Interest.     Per  cent. 

Maine G 

New  Hampshire,  .         ,         .         .6 
Vermont 6 


Penalty  for  Violation  of  Usury  Laws. 

Excess  not  recoverable. 
Forfeit  three  times  the  interest. 
Excess  may  be  recovered  back. 


en.  VI.] 


OF   INTEREST   AND   USURY. 


431 


Legal  Rate  of  Interest.    Per  cent. 

Massachusetts,       ....    6 
Rhode  Island,    ....         6 

Connecticut, 6 

New  York, 7 

New  Jersey,    .      .        .        .        .6 
Pennsylvania,    ....        6 

Delaware, 6 

Maryland,  ....         6 

Virginia,       .         .         .         .         .6 
North  Carolina,  ...         6 

South  Carolina,    .        .        .        .7 

Georgia, 7 

Alabama, 8 

Arkansas,  ....        6 

Florida, 6 

Illinois, 6 

Indiana,         .         .         .         .         .6 
Iowa,         ......        6 

Kentucky, 6 

Louisiana,  ....         5 

Michigan,      .    •  .        .        .        .7 
Mississippi,        ....         6 

Missouri, 6 

Ohio, 6 

Tennessee, 6 

Texas, 8 

Wisconsin, 7 

California,  ....       10 

There  are  various  States  that  per- 
mit a  higher  rate  of  interest  on  special 
contracts,  viz  :  —  In  Vermont,  7  per 
cent,  may  be  charged  upon  railway 
bonds ;  in  New  Jersey,  7  per  cent, 
may  be  charged  in  Jersey  city  and  the 
township  of  Hoboken  ;  in  Maryland,  the 
penalty  is  a  matter  of  some  doubt,  in 
consequence  of  a  late  decision  of  Judge 
Taney,  which  does  not,  however,  meet 
the  assent  of  the  bar  of  Baltimore ;  in 
Arkansas,  10  per  cent,  may  be  charged 


Penalty  for  Violation  of  Usury  Laws. 

Forfeit  three  times  the  whole  interest. 

Excess  may  be  recovered  l)y  payer. 

Forfeiture  of  all  the  interest. 

Forfeiture  of  contract. 

Forfeiture  of  contract. 

Forfeiture  of  contract. 

Forfeiture  of  contract. 

Excess  recoverable  by  payer. 

Contract  void. 

Contract  void. 

Forfeiture  of  all  the  interest. 

Forfeiture  of  all  tlie  interest. 

Forfeiture  of  all  the  interest. 

Contract  void. 

Forfeiture  of  all  the  interest. 

Defendant  recovers  his  cost. 

Fine  of  five  times  the  whole  interest. 

Forfeiture  of  excess  of  interest. 

Contract  for  interest  void. 

Forfeiture  of  all  the  interest. 

No  penalty. 

Forfeiture  of  excess  of  interest. 

Forfeiture  of  excess  of  interest. 

Forfeiture  of  excess  of  interest. 

Liable  to  indictment  for  misdemeanor. 

Forfeiture  of  all  the  interest. 

Special  contracts,  12  per  cent. 

No  penalty. 

on  special  contracts ;  in  Illinois,  the 
banks  may  charge  7  per  cent.,  and  10 
per  cent,  may  be  charged  between  indi- 
viduals on  special  contracts ;  in  Iowa, 
10  per  cent,  is  allowed  on  special  con- 
tracts ;  in  Louisiana,  8  per  cent,  may 
be  so  charged  ;  in  Michigan,  contracts 
in  writing  are  legal  to  charge  10  per 
cent. ;  the  same  in  Mississippi  and  Ohio  ; 
in  Texas,  12  per  cent,  may  be  charged 
on  special  contracts. 


432  THE   LAW. OF   CONTRACTS.  [PART  II. 


CHAPTER  VII. 

DAMAGES. 

Sect.  1. —  Of  the  General  Ground  and  Measure  of  Damages. 

It  has  already  been  remarked  that  the  common  law  does 
not  aim  at  preventing  a  breach  of  dnty,  or  compelling  the 
fulfilment  of  a  contract  by  direct  means-.  This  equity  does. 
But,  as  a  general  rule,  the  common  law  contents  itself  with 
requiring  him  who  has  done  an  injury  to  another,  to  pay  to 
the  injured  party  damages.  And  even  where,  as  in  debt  or 
assumpsit,  for  a  specific  sum,  the  action  is,  in  fact,  as  Lord 
Mansfield  remarked,  (c)  a  suit  for  specific  performance,  it  is 
not  altogether  so  in  form. 

The  principle  which  measures  damages,  at  common  law, 
is  that  of  giving  compensation  for  the  injury  sustained  ;  —  a 
compensation  which  shall  put  the  injured  party  in  the  same 
position  in  which  he  would  have  stood  had  he  not  been  in- 
jured ;  (a)  the  simplest  form  of  which  occurs  where  the  ground 
of  the  action  is  the  wrongful  non-payment  of  money  due,  and 
the  damages  consist  of  the  money,  with  interest,  for  the  whole 
period  intervening  between  the  refusal  and  the  judgment.  ^ 
But  in  many  instances  the  law  lessens  this  compensation, 
leaving  upon  the  injured  party  a  part  of  his  loss  ;  and  in  some, 
increases  the  compensation,  by  way  of  punishment,  to  the 
wrong-doer. 

(z)  "  Pecuniary  damages  upon  a  con-  («)  ^' Damna,"  says  Lord    Coke,   "in 

tract  for  payment  of  money,  arc,  from  the  common  law  liath  a  special  signifi- 

thc   nature  of  the  thing  a  specitic  per-  cation  for  the  recompense  that  is  given 

formance."      Per    Lord    Mansfield,    in  by  the  jury  to  tlie  phiintiff  or  demandant, 

Kobinson  i;.  Bland,  2  Burr.  1077,  1086.  for  tlie  wrong  tlic  defendant  hath  done 

See' also  Rudder  v.  Price,  1  H.  Bl.  547,  unto  him."   Co.  Litt.  257,  a. 
554.    Per  Lord  LoiKjhborough. 


en.    VII.]  DAMAGES.  43i 


SECTION  II. 
OF  LIQUIDATED   DAMAGES. 

The  law  will  permit  parties  to  determine  by  an  agreement 
which  enters  into  the  contract,  what  shall  be  the  damages 
which  he  who  violates  the  contract  shall  pay  to  the  other; 
but  it  does  not  always  sanction  or  enforce  the  bargain  they 
may  make  on  this  subject.  Damages  thus  agreed  upon  be- 
forehand, wheh  sanctioned  by  the  law,  are  called  liquidated 
damages.  Where  the  parties  make  this  agreement,  but  not 
in  such  wise  that  the  law  adopts  it,  then  the  damages  thus 
agreed  upon  are  a  penalty,  or  in  the  nature  of  a  penalty. 
And  the  question  whether  damages  agreed  upon  are  to  be 
treated  as  liquidated,  or  as  in  the  nature  of  a  penalty  and 
therefore  disregarded,  often  occurs,  and  is  not  always  of  easy 
or  obvious  solution. 

By  a  bond  with  conditions,  (an  ancient,  and  somewhat 
peculiar  instrument),  a  party,  (the  obligor)  first  acknowledges 
himself  bound  to  another  party  (the  obligee)  in  a  certain  sum 
of  money.  Then  follows  an  agreement,  in  the  form  of  a  condi- 
tion, that  if  the  obligor  shall  do  a  certain  other  thing,  which 
may  or  may  not  be  the  payment  of  other  money,  the  obliga- 
tion above  mentioned  shall  be  void.  It  is  obvious  that  the 
primary  purpose  of  the  instrument,  if  the  parties  are  honest, 
is  that  the  thing  shall  be  done  which  is  recited  in  the  con- 
dition. And  the  secondary  purpose  is,  that  if  that  thing 
be  not  done,  the  money  for  which  the  obligor  is  bound  shall 
be  paid  by  way  of  compensation  to  the  obligee,  and  by 
way  of  punishment  to  the  obligor.  Hence  its  name  of 
penalty.  And,  as  in  fact,  the  obligee  always  took  care  that 
the  penalty  should  be  high  enough  to  give  him  full  compen- 
sation, and  operate  as  a  powerful  motive  upon  the  obligor, 
it  happened  generally,  if  not  always,  that  the  penalty  was 
much  more  than  compensation  for  the  wrong  done  by  a 
breach  of  the  condition.  But  the  law  had  no  remedy  for  this  ; 
and  one  of  tlje  earlier  of  the  just  and  merciful  interpositions 
of  the  courts  of  equity,  was  to  reduce  the  sum  mentioned  in 
the  penalty  to  the  actual  measure  of  the  injury  sustained,  so 

VOL.  II.  37 


434  THE  LAW  OF  CONTRACTS.         [PART  II. 

as  to  make  it  full  compensation,  but  no  more,  (b)  The  pro- 
priety arid  expediency  of  this  relief  were  so  obvious,  that 
courts  of  law,  aided  by  statutes,  soon  applied  it,  and  now, 
both  in  England  and  America,  this  is  constantly  done  by  the 
courts  of  law.  (c)  And  in  this  practice,  and  the  reasons  for 
it,  we  may  find  principles  which  aid  us  in  drawing  the  dis- 
tinction between  liquidated  damages  and  a  penalty.  For  it 
is  obvious  that  where  parties  agree  upon  the  damages  to  be 
paid  for  a  breach  of  contract,  whatever  name  they  give  to  it, 
they  do  substantially  the  same  thing  which  is  done  by  a  bond 
with  penalty.  And  there  is  no  more  reason  why  the  courts 
should  regard  the  agreement,  if  it  opposes  reason  and  justice, 
in  the  one  case  than  in  the  other. 

One  rule,  therefore,  is  this :  that  the  action  of  the  court 
shall  not  be  defined  and  determined  by  the  terms  which  the 
parties  have  seen  fit  to  apply  to  the  sum  fixed  upon.  Though 
they  call  it  a  penalty,  or  give  to  it  no  name  at  all,  it  will  be 
treated  as  liquidated  damages,  that  is,  it  will  be  recognized 
and  enforced  as  the  measure  of  damages,  if  from  the  nature 
of  the  agreement  and  the  surrounding  circumstances,  and  in 
reason  and  justice  it  ought  to  be.  (d)  And  though  they  call  it 
liquidated  damages,  it  will  be  treated  as  a  penalty,  if  from  a 

(b)  Tit.  Bond  and  Penalty,  Eq.  Cas.  that  the  500/.  was  not  a  penalty,  but  li- 
Abr.  91,  92;  Butie  v.  Falkland,  3  Ch.  quidatcd  damages.  Coltman,  J.,  said: 
Cas.  1.35,  per  Lord  Somers.  "  Although   the   word  '  penalty,'  which 

(c)  4  Anne,  c.  16,  §§  12,  13.  Du-  would  ;:»;•»«« /a«e  exclude  the  notion  of 
ring  a  short  period  before  this  statute,  stipulated  damages,  is  used  here,  yet  we 
the  practice  appears  to  have  been  must  look  at  the  nature  of  the  agrce- 
this.  The  defendant,  on  motion,  was  ment,  and  the  surrounding  circumstan- 
allowed  to  bring  the  whole  amoimt  of  cos,  to  see  whether  the  parties  intended 
the  penalty  into  court,  and  the  proceed-  the  sum  mentioned  to  be  a  penalty  or 
ings  were  thereupon  stayed.  The  plain-  stipulated  damages.  Considering  the 
tiff,  however,  received  only  the  amount  nature  of  the  agreement,  and  the  diffi- 
of  the  principal,  interest,  and  costs,  and  culty  the  plaintitF  would  be  under  in 
if  this  did  not  equal  the  amount  of  the  showing  wliat  specific  damage  he  had 
penalty,  the  defendant  was  allowed  to  sustained  from  the  defendant's  breach 
take  out  the  remainder.  Ireland's  case,  of  it,  I  think  we  can  only  reasonably  con- 
6  Mod.  11  ;  Gregg's  case,  2  Salk.  596;  strue  it  to  be  a  contract  for  stipulated 
Anons.  6  Mod.  11.  The  court  said,  in  and  ascertained  damages."  Chamber- 
Burridgc  v.  Fortescue,  6  Mod.  60.  "  It  lain  v.  Bayley,  1 1  N.  H.  234,  240,  per 
is  an  equitable  motion  to  be  relieved  Uphum,  J. ;  Brewster  v.  Edgcrly,  13  N. 
against  the  ])enalty."  H.  275.     In    Chiddick   v.    Marsh,  1  N. 


{(I)  In  Sainter  v.  Ferguson,  7  C.  B.  Jer.  463,  465,    (Jrcoi,  C.  J.,  said :  "  If 

716,  the  defendant  agreed  not  to  "  prac-  upon  the  face  of  the  instrument,  it  be 

tise  as  surgeon  or  ajjothecary,  at  Mac-  doubtful  whether  the  contracting  parties 

clcsficld,  or  within  seven  miles  thereof,  intended  that  the  sum  specified   in  the 

under  a  penalty  of  500/."    It  was  held  agreement  should  be  a  penalty  or  liqui- 


CH.    VII.]  DAMAGES.  436 

consideration  of  the  whole  contract  it  appears  that  the  parties 
intended  it  as  such,  (e)  or  if,  where  the  injury  is  certain,  the 
sum  fixed  upon  is  clearly  disproportionate  to  such  injury  and 
the  real  claim  which  grows  out  of  it. 

Among  the  principles  which  have  been  found  useful  in 
determining  this  last  question,  perhaps  the  two  most  impor- 
tant and  influential  are  these.  The  sum  agreed  upon  will 
be  treated  as  penalty,  unless,  first,  it  is  payable  for  an  injury 
of  uncertain  amount  and  extent ;  and  second,  unless  it  be 
payable  for  one  breach  of  contract,  or  if  for  many,  unless  the 
damages  to  arise  from  each  of  them  are  of  uncertain  amount. 

The  first  rule  may  be  illustrated  by  a  promise  to  pay  one 
thousand  dollars  in  three  months,  with  an  agreement  that  if 
the  promisor  fails  in  this  payment  he  shall  pay  to  the  pro- 
misee two  thousand  dollars,  by  way  of  liquidated  damages. 
Here  it  is  at  once  obvious  and  certain  that  this  bargain  dif- 
fers in  no  respect  but  that  of  form  from  a  bond  with  a 
penalty  in  the  larger  sura,  conditioned  to  pay  the  less ;  and 
that  it  must  necessarily  be  treated  in  the  same  way ;  that  is, 
the  penalty  must  be  reduced  to  the  measure  of  the  actual 
damages.    The   general   reason  of  this  rule  is,  that   where 

dated  damages,  the  inclination  of  courts  ance  of  an  agreement,  is  considered 
is  to  consider  the  contract  as  creating  a  as  a  penalty,  the  legal  operation  of 
penalty  to  cover  the  damages  actually  which  is  to  cover  the  damages  which 
sustained  by  a  breach  of  the  contract,  and  the  party  in  whose  favor  the  stipu- 
not  liquidated  damages."  Bagley  v.  lation  is  made,  may  have  sustained 
Teddie,  5  Sandf.  192  ;  Crisdee  v.  Bol-  from  the  breach  of  contract  by  the  op- 
ton,  3  Car.  &  Payne,  240 ;  Tayloe  v.  posite  party.  It  will  not,  of  course,  be 
Sandiford,  7  Wheat.  13  ;  Shute  v.  Tay-  considered  as  liquidated  damages  ;  and 
lor,  5  Mete.  61,  67,  per  Shaw,  C.  J.  ;  it  will  be  incumbent  on  the  party  who 
Baird  v.  FoUiver,  6  Humph.  186.  See  claims  them  as  such,  to  show  that  they 
Lindsay  v.  Amsley,  6  Ired.  186.  In  were  so  considered  by  the  contracting 
Smith  V.  Dickenson,  3  Bos.  &  Pul.  630,  parties.  Much  stronger  is  the  inference 
the  court  expressed  themselves  clearly  in  favor  of  its  being  a  penalty,  when  it 
of  opinion,  that  the  word  "  penalt)'"  is  expressly  reserved  as  one.  The  par- 
being  used  in  the  agreement  eflcctually  ties  themselves  expressly  denominate  it 
prevented  them  from  considering  the  a  penalty ;  and  it  would  require  very 
sum  mentioned  as  liquidated  damages,  strong  evidence  to  authorize  tlie  court 
The  bond,  in  Fletcher  v.  Dyche,  2  T.  R.  to  say  that  their  own  words  do  not  ex- 
32,- used  the  words  '' forfeit  and  pay;"  press  their  own  intention."  But  in 
but  the  sum  mentioned  was  held  as  li-  Hodges  v.  King,  7  Mete.  583,  588,  per 
quidated  damages.  The  Supreme  Court  Hubhard,  J. :  "  The  bond  has  indeed  a 
of  the  U.  S.  in  Tayloe  i'.  Sandiford,  7  condition,  but  that  is  matter  of  form,  and 
Wheat.  13,  say  this  case  is  clearly  dis-  cannot  turn  that  into  a  penalty,  which, 
tinguisliable  from  a  case  where  the  but  for  the  form,  is  an  agreement  to  jjay 
word  penalty  is  used ;  also  per  C.  J.  a  precise  sum,  under  certain  circum- 
MarsluiU :  '•  In  general  a  sum  of  money  stances." 
in  gross,  to  be  paid  for  the  non-perform-        (e)  In  Davis  v.  Penton,  6  B.  &  C. 


43G 


THE  LAW   OF   CONTRACTS. 


[part  II. 


the  injury  resulting  from  a  breach  of  contract,  is  ascertain- 
able at  once  by  computation,  or  is  capable  of  immediate  and 
exact  measurement  by  other  means,  so  that  the  parties  could 
have  certainly  provided  for  exact  compensation,  if  the  sum  they 
agree  upon  is  more  than  this,  it  may  be  presumed  that  it  was 
.really  intended  as  a  penalty,  or  that  there  was  oppression  oti 
the  one  side  and  weakness  or  inadvertence  on  the  other;  or 
if  not  these,  that  the  principle  was  disregarded,  which,  alone, 
the  law  recognizes  as  the  first  measure  of  damages,  that  is, 
the  principle  of  compensation.  And  the  court  will  do,  with 
the  aid  of  a  jury,  what  the  parties  have  not  done  ;  that  is,  they 
will  apply  this  principle.  (/)  But  where,  among  all  the  possibi- 


216,  224,  LMedale,  J.,  said:  "Before 
the  8  &  9  W.  3,  the  whole  penalty  might 
be  recovered  at  law ;  and  the  party 
against  whom  it  was  recovered  was 
driven  to  seek  relief  in  a  court  of  equity. 
The  statute  only  contains  the  word 
"penalty.''  .  Since  the  statute,  parties 
in  framing  agreements,  have  frequently 
changed  that  word  for  liquidated  dama- 
ges;  but  the  mere  alteration  of  the  terra 
cannot  alter  the  nature  of  the  thing; 
and  if  the  court  see,  upon  the  whole 
agreement,  that  the  parties  intended  the 
sum  to  be  a  penalty,  they  ought  not  to 
allow  one  party  to  deprive  the  other  of 
the  benefit  to  be  derived  from  the  sta- 
tute." In  that  case  the  parties  were 
bound  "  in  the  penal  sum  of  500/.,  to  be 
recoverable  for  breach  of  the  said  agree- 
ment, in  any  court  or  courts  of  law,  as 
and  by  way  of  liquidated  damages." 
The  500?.  was  held  to  be  a  penalty  and 
not  liquidated  damages.  See  Hoag  v. 
McGinnis,  22  Wend.  163.  The  limita- 
tions of  this  principle  appear  to  be  well 
stated,  in  Price  v.  Green,  16  M.  &'.  W. 
346,  354.  Tlic  defendant  was  bound 
in  the  sum  of  5,000/.  by  way  of  liipii- 
dated  damages,  and  not  of  penalty,  not 
to  carry  on  liis  trade  within  certain  lim- 
its. It  was  held  that  the  jilaintitf  could 
recover  the  5,000/.  as  liquidated  dam- 
ages. Pattcsun,  J.,  said  :  "  Where  it  is  a 
sum  named  in  respect  of  the  breach  of 
one  covenant  only,  and  the  intention  of 
the  parties  is  clear  and  unequivocal, 
the  courts  have  indeed  held,  that,  in 
some  cases,  the  words  '  liquidated  dam- 
ages' are  not  to  lie  taken  according  to 
their  obvious  meaning  ;  but  those  cases 
are  all  where  the  dointr  or  omitting  to 


do  several  things  of  various  degrees  of 
importance  is  secured  by  the  sum  named, 
and,  notwithstanding  the  language  used, 
it  is  plain  from  the  whole  instrument 
that  the  real  intention  was  different.  " 

(/)  There  has  been  much  conflict  in 
the  decisions  which  have  been  made 
upon  this  class  of  contracts.  While 
some  of  the  courts  have  been  disposed 
to  apply  to  them  the  ordinary  rules  of 
construction,  and  to  carry  out  the  inten- 
tion of  the  parties,  as  expressed  in  the 
instrument,  without  regard  to  its  justice, 
others  have  been  inclined,  in  almost  all 
cases,  to  regard  the  sum  fixed  upon  as  a 
penalty,  and  to  settle  themselves,  with 
the  aid  of  a  jury,  the  question  of  dam^ 
ages,  notwithstanding  the  expressions 
used  by  the  parties.  But  the  law  ap- 
pears to  be  now  settled,  that  the  courts 
will  apply  to  these  contracts  the  ordina- 
ry rules  of  construction,  and  carry  out 
the  expressed  intention  of  the  parties, 
unless  one  of  the  two  rules  laid  down 
in  the  text  is  found  to  apply.  The  first 
rule,  which  appears  to  liave been  confined 
to  the  case  in  which  it  is  agreed  to  pay 
a  larger  sum  of  money  as  licpiidated 
damages,  on  a  failure  to  pay  a  smaller 
sum  on  a  given  contingency,  was  laid 
down  in  Orr  v.  Churchill,  1  II.  Bl.  227. 
In  that  case  a  high  rate  of  interest  was 
to  be  paid  "  by  way  of  penalty,"  ui)on  a 
failure  to  pay  over  a  sum  of  money,  at 
a  fixed  time.  Lord  Loughborough  said  : 
"  Where  the  question  is  concerning  the 
non-paymentof  money, in  circumstances 
like  tlie  present,  the  law,  having  Iiy  posi- 
tive rules  fixed  tlie  rate  of  interest,  has 
bounded  the  measure  of  damages ; 
otherwise  the  law  might  be  eluded  by 


en.  VII.] 


DAMAGES. 


437 


lities  of  injury  resulting  from  a  breach  of  contract,  it  is  impos- 
sible to  select  the  certain  or  probable  results,  or  to  define  them 


the  parties.  It  may  often,  indeed,  hap- 
pen, that  the  damages  sustained  by  the 
party  contracting,  bj'  the  non-payment 
of  monc}^  at  the  time  agi-ced  on,  may 
by  the  particuhir  arrangement  of  his 
aflixirs,  be  greater  than  the  compensa- 
tion recovered  by  computing  the  inter- 
est ;  but  wlierc  money  lias  a  real  rate 
of  interest  and  vahie,  tlie  other  party  is 
not  to  be  compcflcd  to  pay  more  than 
the  law  has  dechircd  to  be  such  rate 
gnd  value."  The  same  rule  was  recog- 
nized in  Astley  v.  Weldon,  2  Bos.  & 
Pull.  346,  354,  where  C7iambre,J.,  said: 
"There  is  one  case  in  whicli  the  sum 
agreed  for  must  always  be  considered 
as  a  penalty:  and  that  is,  where  the 
payment  of  a  smaller  sum  is  secured  by 
a  larger."  Again,  in  Kcmble  v.  Earren, 
6  Bing.  141,  148,  Thidal,  C.  J.,  said: 
"  That  a  very  large  sum  should  become 
immediately  payable,  in  consequence  of 
tlie  non-payment  of  a  very  small  sum, 
and  that  the  former  should  not  be  con- 
sidered as  a  penalty,  appears  to  be  a 
contradiction  in  terms ;  the  case  being 
precisely  that  in  which  courts  of  equity 
have  always  relieved,  and  against  which 
courts  of  law  have,  in  modern  times, 
endeavored  to  relieve  by  directing  ju- 
ries to  assess  the  real  damages  sustain- 
ed by  a  breach  of  the  agreement."  But 
the  very  late  English  authorities  have 
shown  a  decided  inclination  to  disregard 
this  rule,  and  to  carry  out  the  intentions 
of  the  parties  as  expressed  in  the  agree- 
ment. See  Pricey.  Green,  su])ra,  n.  (e). 
In  Galsworthy  v.  Strutt,  1  Exch.  659, 
665,  Parke,  B.,  with  Astley  v.  AVeldon, 
and  Kemble  v.  Parren  before  him,  said  : 
"  I  take  it  that  it  would  be  competent 
for  the  parties  to  make  a  stipulation  for 
the  payment  of  a  certain  sum  on  the 
non-performance  of  a  covenant  to  pay 
a  smaller  sum  ;  but  they  must  do  so  in 
express  terms ;  and  if  that  be  done  I 
do  not  see  how  the  courts  can  avoid 
giving  effect  to  such  a  contract."  But 
in  this  country  the  rule,  as  stated  in  the 
text  and  in  the  earlier  cases,  appears  to 
be  generally  recognized.  In  Grav  v.  Cros- 
by, 18  Johns.  219,  226,  Wood'worth,  J., 
in  remarking  upon  a  case  where  a  party 
covenanted  on  a  certain  contingency  to 
pay  a  sum  of  money,  with  ])roviso  tliat 
if  he  refused,  he  was  then  to  pay  a 
larger  sum  as  liquidated  damages,  said: 

37* 


"  Such  facts  constitute  no  right  to  reco- 
ver beyond  the  money  actually  due. 
Liquidated  damages  are  not  applicable 
to  such  a  case.  If  they  were,  they  might 
afford  a  sure  protection  for  usury,  and 
countenance  oppression  under  the  forms 
of  law."  See  Bagley  v.  Peddie,  5  Sandf. 
192;  Williams  i-.'Dakin,  22  Wend. 
211,  per  Wal icorth,  Ch. ;  Iloag  v.  Mc- 
Ginnis,  22  Wend.  163  ;  Heard  v.  Bow- 
ers, 23  Pick.  455,  462  ;  Sessions  v.  Rich- 
mond, 1  R.  I.  298,  303  ;  Plummer  u.  Mc- 
Kean,  2  Stewart,  423.  But  see  Jordan 
V.  Lewis,  Id.  426.  This  rule  has  also 
received  the  sanction  of  the  Superior 
Court  of  New  Hampshire,  although  that 
court  has  generally  been  decidedly  in 
favor  of  applying  the  ordinary  principles 
of  construction  to  agreements  for  the 
liquidation  of  damages.  Thus,  in 
Mead  v.  Wheeler,  13  1n.  H.  351,  353, 
Gilchrist,  J.,  said :  "  It  is  settled  that 
when  there  is  an  agreement  to  pay  a 
large  sum,  if  the  party  fail  to  pay  a 
smaller  sum,  the  agreement  to  pay  the 
penalty  cannot  be  enforced  beyond  the 
amount  of  legal  interest.  Although  in 
fact  the  creditor  may  suffer  the  most 
serious  injury  from  the  want  of  punctual 
payment  of  his  debt,  and  the  payment 
of  principal  and  interest  may  very 
inadequately  compensate  him  for  his 
disappointment,  still  the  payment  of 
more  than  legal  interest  cannot  be  en- 
forced under  the  denomination  of  a 
penalty,  althougii,  if  the  agreement  to 
pay  a  penalty  be  in  accordance  with  the 
general  usage  and  practice  of  a  particu- 
lar trade,  it  has  been  held  that  it  might 
be  enforced,  even  if  it  should  exceed  the 
legal  interest.  Floyer  v.  Edwards,  Cow- 
per,  112;  E.v  parte  Aynsworth,  4  Ves. 
678.  The  payment  of  money  being  the 
thing  to  be  done,  as  money  is  the  only 
measure  of  damages,  no  closer  approxi- 
mation to  the  damages  sustained  can  be 
made,  than  to  estimate  them  at  the  sum 
agreed  to  be  paid,  and  the  interest  there- 
on. This  consideration,  with  the  neces- 
sity of  enforcing  the  laws  against  usury, 
affords  perhaps  as  good  a  reason  why 
the  party  sliould  be  com))clled  to  pay 
no  more  tlian  the  sum  specified,  and  the 
interest,  as  the  inequity  of  his  paying  a 
large  sum  for  the  omission  to  pay  a 
smaller  sum."  In  establishing  this  rule 
the  courts  seem  to  have  been  influenced 


438  THE  LAW   OF   CONTRACTS.  [PART  U. 

with  any  precision  by  reference  to  a  money-standard,  here  the 
parties  may  agree  beforehand  what  the  injury  shall  be  valued  at, 
or  what  shall  be  taken  for  a  compensation  ;  for  if  the  court  sets 
it  aside,  it  can  only  do  what  it  may  be  supposed  the  parties 
had  a  right  to  do  and  have  done,  and  that  is,  arrive  at  a  gene- 
ral probability  by  a  consideration  of  all  the  circumstances  of 
the  case.  Such  an  agreement,  therefore,  the  court  will  not 
set  aside,  unless  for  such  obvious  excess  and  disproportion  to 
all  rational  expectation  of  injury,  as  make  it  certain  that 
the  principle  of  compensation  was  wholly  disregarded. 

The  second  rule  is  derived  from  similar  considerationst 
Let  us  suppose  a  contract  between  parties,  one  of  whom, 
for  good  consideration,  promises  to  the  other  to  do  several 
things,  and  then  it  is  agreed  that  the  promisor  shall  pay,  by 
way  of  liquidated  damages,  a  large  sum,  if  the  promisee 
recover  against  him  in  an  action  for  a  breach  of  this  contract. 
It  must  be  supposed  that  this  sum  is  intended  and  regarded 
as  adequate  compensation  for  a  breach  of  the  whole  contract; 
for  it  is  all  that  the  promisor  is  to  pay  if  he  breaks  the  whole. 
It  would,  of  course,  be  most  unjust  and  oppressive  to  require 
of  him  to  pay  this  whole  sum,  for  violating  any  one  of  the 
least  important  items  of  the  contract.  But  such  would  be 
the  effect  if  the  words  of  the  parties  prevailed  over  the  justice 
of  the  case.  The  sum  to  be  paid  would,  therefore,  be  treated 
as  a  penalty,  and  reduced  accordingly,  unless  the  agreement 
provided  that  it  should  be  paid  only  when  the  whole  con- 
tract was  broken,  or  so  much  of  it  as  to  leave  the  remainder 
of  no  value ;  or  else  the  sum  agreed  upon  was  broken  up 
into  parts,  and  to  each  breach  of  the  contract  its  appropriate 
part  assigned  ;  and  the  sum  or  sums  payable  came  in  other 
respects  within  the  principles  of  liquidated  damages,  (g-) 

more  or  less  by  a  desire  to  prevent  an  Pull.  346,  353,  Heath,  J.,  said,  "  Where 

evasion  of  the  statutes  against  usury,  articles  contain  covenants  for  the  pcr- 

But  as  it  is   settled  that  this  class  of  formance  of  several  things,  and   then 

cases  does  not  come  within  these  sta-  one  large  sum  is  stated  at  the  end  to  be 

tutes;    Cutler  v.  Dow,  8   Mass.   257;  paid  upon  breach  of  performance,  that 

rioyer  v.   Edwards,  Cowper,  112,  115,  must  be  considered  as  a  penalty."    The 

per  Lord  Mansjidd ;  we  tiiink  the  rule  subsequent   case  of  Reilly  i\  Jones,  1 

may  more  safcl}^  rest  upon  the  grounds  Bing.  ."302,  has  been  thought  inconsistent 

taken  in  the  text,  than  upon  considcra-  with  this  princi])lc,   but  it  was  not   so 

tions  of  that  nature.  considered  by  the  court,  but  the  sum 

[ij)  In  Astley  v.  Weldon,  2  Bos.  &  mentioned  was   held   to  be  liquidated 


CH.  vn.] 


DAMAGES. 


439 


With  the  exception  of  these  rules  of  construction,  which 
seem  to  have  grown  out  of  the  peculiar  nature  of  this  class 


damages,  because  it  was  so  called  by 
the  parties,  and  the  ap;reeinont  was  in 
substance  for  the  performance  of  one 
tlunf/  onli/.  See  Barton  r.  Glover,  Holt, 
N.  i'.  4:i.  In  Kemble  v.  Farren,  G  Bing. 
141,  the  action  was  assumpsit,  by  the 
manager  of  Covent  Garden  Theatre, 
against  an  actor  to  recover  licjuidatcd 
damages  for  the  violation  of  an  engage- 
ment to  perform.  There  were  several 
stipulations,  of  various  degrees  of  im- 
portance, on  each  side,  "some  soundinj 
in  uuc(Tt(U!i  dama(jes,  others  relalimj  to  cer- 
tain pecumary  payments;  and  the  agree- 
ment contained  a  clause,  that  if  either 
of  tiie  parties  should  neglect  or  refuse 
to  fullil  the  said  engagement,  or  any 
part  thereof  or  any  stipulation  therein  con- 
tained, such  party  should  pay  to  the 
Other  the  sum  of  1,000/.,  to  which  sum  it 
was  thereby  agreed  that  the  damages 
sustained  by  any  such  omission,  neglect, 
or  refusal  should  amount;  and  whicli 
sura  was  thereby  declared  by  the  said 
parties  to  be  liquidated  and  ascertained 
damages,  and  not  a  penalty  or  penal  sum, 
or  in  the  nature  thereof."  Notwithstand- 
ing the  strong  expressions  used  by  the 
parties,  the  sum  was  held  to  be  a  penalty, 
and  not  liquidated  damages.  But  Tia- 
dal,  C.  J.,  said,  "  If  the  clause  had  been 
limited  to  breaches  which  were  of  an 
uncertain  nature  and  amount,  we  should 
have  thought  it  would  have  had  the 
eflect  of  ascertaining  tiie  damages,  upon 
any  such  breach,  at  1,000/.;  thus  restrict- 
ing the  application  of  the  general  rule 
cited  above,  from  Astley  v.  Weldon,  to 
cases  in  which  some  of  the  stipulations 
are  of  certain  nature  and  amount.  This 
decision  has  been  followed  in  England, 
in  Edwards  v.  Williams,  5  Lamb.  247  ; 
Crisdee  v.  Bolton,  3  Car.  &  Payne,  240, 
243 ;  Boys  r.  Ancell,  5  Bing.  N.  C.  390, 
S.  C.  7  Scott,  3G4  ;  Street  v.  Bigby,  6 
Ves.  81.5;  Beckham  v.  Drake,  8  M.  W. 
846,  853  ;  Horner  v.  Flintoff,  1)  Id.  678 ; 
Galsworthy  v.  Strutt,  1  Exch.  659 ;  At- 
kins V,  Kinnier,  4  Exch.  776.  The 
present  state  of  the  law  in  England  may 
be  gathered  from  the  following  remarks 
of  Parke,  B.,  in  Atkyns  v.  Kinnier. 
"  The  rule  of  law,  as  laid  down  in 
Kemble  v.  Farren,  (which  I  cannot  hclj) 
thinking  was  somewhat  stretched,)  was, 
that  although  the  parties  used  the  words 
"liquidated  damages,"  yet,  when  the 


context  was  looked  at,  it  was  impossible 
to  say  that  they  intended  that  the 
amount  named  should  be  other  than  a 
I)cnahy.  inasmuclias  the  agreement  con- 
tained various  stipulations,  some  of 
which  were  capable  of  being  measured 
by  a  precice  sum,  and  others  not ;  as,  for 
instance,  the  plaintiff  was  to  pay  the 
defendant  a  certain  weekly  salary,  which 
was  capable  of  being  strictly  measured, 
and  was  far  below  1,000/.;  therefore, 
upon  a  reasonable  construction  of  the 
covenant,  the  words  "  liquidated  dam- 
ages "  were  to  be  rejected,  and  the 
amount  treated  as  a  penalty.  That  de- 
cision has  since  been  acted  upon  in  se- 
veral cases,  and  I  do  not  mean  to  dis- 
pute its  authority.  Therefore,  if  a  party 
agrees  to  pay  1,000/.,  on  several  events, 
all  of  which  are  capable  of  accurate  val- 
uation, the  sum  must  be  construed  as  a 
penalty,  and  not  as  liquidated  damages. 
But  if  thei'e  be  a  contract,  consisting  of 
one  or  more  stipulations,  the  breach  of 
which  cannot  be  measured,  then  the 
parties  must  be  taken  to  have  meant* 
that  the  sum  agreed  on  was  to  be  li- 
quidated damages  and  not  a  penalty. 
In  this  case  there  is  no  pecuniary  stip- 
ulation for  which  a  sum  certain,  of  less 
amount  than  1,000/.  is  to  be  paid,  but 
all  the  stipulations  are  of  uncertain  value. 
Possibly  this  may  have  been  a  very  im- 
prudent contract  for  the  defendant  to 
make ;  but  with  that  we  have  notliing 
to  do.  Upon  the  true  construction  of 
the  deed,  the  amount  is  payable  by  way 
of  liquidated  damages,  and  not  as 
penalty."  The  decision  of  Kemble  v. 
Farren  was  questioned  by  Gilchrist,  J., 
in  Brewster  v.  Edgerly,  13  N.  H.  275, 
278,  but  it  has  been  generally  recognized 
in  this  country  as  sound  law.  Williams 
V.  Dakin,  17  Wend.  447,  455;  S.  C.  22 
Wend.  201,  212;  Jackson  v.  Baker,  2 
Ed.  Ch.  471 ;  Heard  v.  Bov/ers,  23  Pick. 
455;  Shute  v.  Taylor,  5  Mete.  61,  67, 
per  Shaw,  J.;  Moore  v.  Platte  Co.,  8 
Miss.  467  ;  Gowcrt'.  Saltmarsh,  1 1  Miss. 
271  ;  Carpenter  v.  Lockhart,  1  Cart. 
(Ind.)  434,  443;  Bright  r.  Kowland,  3 
How.  (Mis.)  398,  413;  Cliaddick  v. 
Marsh,  1  New  Jersey,  463 ;  Curry  v. 
Lurcr,  7  Penn.  St.  470.  In  the  late  cases 
of  Beale  i'.  Hayes,  5  Sandf.  640,  and. 
Bagley  v.  Peddle,  Id.  192,  this  question 
has  been  ably  discussed,  and  tliis  rule 


440 


THE  LAW   OF   CONTRACTS. 


[part  II. 


of  contracts,  courts  are  guided  by  the  intentions  of  the  parties 
in  determining  whether  the  sum  contracted  to  be  paid  upon 
the  non-performance  of  a  covenant  is  to  be  considered  as  li- 
quidated daniages,  to  be  enforced  according  to  the  terms  of 
the  agreement,  or  as  a  penalty  to  be  controlled  by  an  asses- 
ment  of  damages  by  a  jury  ;  and  in  ascertaining  these  inten- 
tions of  the  contracting  parties,  the  ordinary  rules  of  construc- 
tion are  applied,  (/a) 


established.  The  case  of  Bealc  v.  Hayes 
arose  out  of  a  theatrical  engagement,  and 
was  not  distinguishable  in  its  material 
facts  from  Kemble  v.  Farrcn,  supra, 
■which  the  court  followed  in  deciding  the 
case.  In  Bag  ley  v.  Pcddie,  tlie  defend- 
ants were  bound  to  pay  "  three  tiiousand 
dollars,  liquidated  damages, "  in  case  A.; 
one  of  the  defendants,  should  refuse  to 
continue  with,  or  serve  the  plaintiff",  or 
should  violate  any  of  several  other  co- 
venants contained  in  the  agreements. 
Some  of  the  covenants  were  clearly 
"  certain  in  their  nature,  and  the  damages 
for  their  breach  could  be  readilj^  ascer- 
tained by  a  jury.  The  sum  was  held  to 
be  a  penalty.  ISandford,  J.,  in  delivering 
a  very  able  opinion  said :  "The  courts 
have  leaned  very  hard  in  favor  of  con- 
structing covenants  of  this  kind  to  be  in 
the  nature  of  penalties,  instead  of  dam- 
ages, fixed  and  stipulated  between  the 
parties ;  and  in  so  doing  have  establish- 
ed certain  rules  which  will  serve  to 
guide  us  in  determining  this  case.  It 
may,  perhaps,  be  justly,  said,  that  in  this 
struggle  to  relieve  parties  from  what,  on 
a  different  construction,  would  be  most 
improvident  and  absurd  agreements,  the 
courts  have  sometimes  gone  very  far 
towards  making  new  contracts  for  them, 
somewhat  varied  from  the  stipulations, 
which,  under  other  circumstances  would 
be  deduced  from  tlie  language  they  used; 
but  we  believe  no  common-law  court 
has  yet  gone  so  far  as  to  i-cduce  the 
damages  conceded  to  have  been  licpiid- 
ated  and  stipuUited  between  tlie  par- 
ties, to  sucli  an  amount  as  the  judges 
deem  reasonable,  which  is  the  course  in 
countries  where  the  civil  law  prevails. 
Among  the  principles  tiiat  appear  to  be 
well  established,  are  these: — 1.  Where 
it  is  doubtful  on  tlic  face  of  the  in- 
strument, whetlier  the  sum  mentioned 
was  intended  to  be  stipuhvted  damages, 
or  a  penalty  to  cover  actual  damages, 
the  courts  iiold  it  to  be  the  latter.    2.  On 


the  contrary,  where  the  language  used 
is  clear  and  explicit,  to  that  effect,  the 
amount  is  to  be  deemed  liquidated  dam- 
ages, however  extravagant  it 'may  ap- 
pear, unless  the  instrument  be  qualified 
by  some  of  the  circumstances  hereafter 
mentioned.  3.  If  the  instrument  pro- 
vide that  a  larger  sum  shall  be  paid,  on 
the  failure  of  the  party  to  pay  a  less 
sum,  in  the  manner  prescribed,  the  lai'ger 
sum  is  a  j)enalty,  whatever  may  be  the 
language  used  in  describing  it.  4.  When 
the  covenant  is  for  the  performance  of 
a  single  act,  or  several  acts,  or  the  ab- 
staining from  doing  some  particular  act 
or  acts,  which  are  not  measurable  by 
any  exact  pecuniary  standard,  and  it  is 
agreed  that  the  party  covenanting  shall 
pay  a  stipulated  sum  a§  damages  for  a 
violation  of  any  of  such  covenants, 
that  sum  is  to  be  deemed  liquidated  dam- 
ages, and  not  a  penalty.  The  cases 
of  lleilly  I'.  Jones,  1  Bing.  302  ;  Smith 
V.  Smith,  4  Wend.  468 ;  Knapp  v. 
Malthy,  13  Ibid.  587  ;  and  Dakin  v.  Wil- 
liams, 17  Ibid.  447:  S.  C,  in  error,  22 
Ibid.  201,  were  of  this  class.  5.  Where 
the  agreement  secures  the  performance, 
or  omission,  of  various  acts,  of  the  kind 
mentioned  in  the  last  proposition,  to- 
gether with  one  or  more  acts,  in  respect 
of  which  the  damages,  on  a  breach  of 
the  covenant,  are  certain,  or  readily  as- 
certainable by  a  jury,  and  there  is  a  sum 
stipulated  as  damages,  to  be  paid  by 
each  party  to  the  other,  for  a  breacli  of 
any  one  of  the  covenants,  such  sum  is 
held  to  be  a  penalty  merely." 

(Ii)  In  Perkins  v.  Lyman,  11  Mass.  76, 
81,  the  court  said:  "The  question, 
whether  a  sum  of  money  mentioned  in 
an  agreement  shall  lie  considered  as  a 
penalty,  and  so  subject  to  tlie  chancery 
|)owcrs  of  this  court,  or  as  damages 
ii([uidated  by  the  parties,  is  always  a 
question  of  construction,  on  whicli,  as 
in  other  cases  where  a  question  of  the 
meaning  of  the  parties  in  a  contract 


CH.   VII.] 


DAMAGES. 


441 


SECTION  III. 

OF  CIRCUMSTANCES   WHICE  INCREASE   OR  LESSEN  DAMAGES. 

We  have  said  that  the  principle  of  compensation  is  that 
which  lies  at  the  foundation  of  the  common-law  measure- 
ment of  damages.  And  this  is  not  the  less  true,  although  there 
are  didiculties  in  the  application  of  this  principle,  and  exact 
and  adequate  compensation  is  seldom  the  result  of  a  law- 
suit. Thus,  the  expenses  of  reaching  this  result,  as  counsel 
fees  and  the  like,  and  the  labor  and  anxiety  even  of  success- 
ful litigation,  are  not  often  compensated,  in  fact,  although 
the  theory  of  the  law,  perhaps,  includes  so  much  of  this  as  is 
actual  labor  and  expense,  in  the  costs  recovered,  [i)     In  some 


provable  by  a  written  instrument,  arises, 
the  court  may  take  some  aid  to  them- 
selves from  circumstances  extraneous 
to  the  writinix.  In  order  to  determine 
upon  the  words  used,  there  may  be  an 
inquiry  into  the  subject-matter  of  the 
contract,  tlie  situation  of  the  parties, 
the  usages  to  wliich  they  may  be  under- 
stood to  refer,  as  well  as  other  facts  and 
circumstances  of  tlieir  conduct;  although 
their  words  are  to  be  taken  as  proved  by 
the  writing  exclusively."  The  fact  that 
the  amount  of  the  damages  is  uncertain, 
nnd  cannot  easily  be  determined  by  a 
jury,  inclines  tlie  courts  to  treat  the  sum 
fixed  upon  as  liquidated  damages.  Sain- 
ter  f.  Ferguson,  7  C.  B.  716;  Fletcher 
V.  Dychc,  2  T.  R.  32  ;  Gammon  v. 
Howe,  14  Maine,  2.50;  Lingley  v.  Cut- 
ler. 7  Conn.  291  ;  Mott  v.  Mott,  1 1  Barb. 
127.  See  Lowe  v.  Peers,  4  Burr.  2225 ; 
Smith  i\  Smith,  4  Wend.  468.  If  the 
payment  of  the  money  appears  to  have 
been  intended  only  to  secure  the  per- 
formance of  tlie  main  object  of  tiic 
ngreement,  the  courts  incline  to  hold  it 
a  penalty.  Sloman  v.  Walter,  1  Bro. 
Ch.  41 8  ;  Graiiam  r.  Bickham,  4  Dallas, 
149  ;  Merrill  v.  Merrill.  15  Mass.  488. 

[i]  In  the  theory  of  the  law  the  taxed 
costs  are  a  full  indemnity  for  the  ex- 
penses of  a  suit.  In  Doe  v.  Filliter,  13 
M.  &  W.  47,  in  an  action  of  trespass  for 
mesne  profits,  the  question  was,  wliether 
the  plaintifi"was  entitled  to  full  costs,  in 
the  action  of  ejectment,  as  between  at- 
torney and  client,  or  whether  the  taxed 
costs  were  to  be  considered  as  a  full  in- 


demnity. The  court  held  the  latter. 
Alderson,  B.,  said  :  '•  The  taxed  costs 
are  intended  to  be  a  full  indemnity  to 
the  plaintiff"  for  his  expenses  in  getting 
back  the  land.  That  is  the  principle ; 
whether  it  be  fully  carried  out  in  prac- 
tice, is  another  matter.  The  question 
is,  what  is  to  be  tlie  criterion  by  which 
the  costs  of  getting  back  land  are  to  be 
estimated  ?  A  plaintiff"  in  ejectment  is 
in  the  same  situation  as  other  suitors, 
all  of  whom  sue  for  their  rights,  and 
obtain  costs  as  an  indemnity :  and  as 
other  plaintiff"s  submit  to  have  their 
costs  taxed,  so  ought  a  plaintiff"  in 
ejectment.  If  the  taxed  costs  are  not  a 
full  indemnity,  they  ought  to  be  made 
so."  But  in  cases  wiicre  the  costs  are 
not  taxed,  the  plaintiff"  may  recover  his 
full  expenses.  Grace  v.  Morgan,  2 
Bing.  N.  C  534  ;  Doc  r.  Filliter,  supra, 
pev Pollock,  CB.  In  admiralty  courts, 
where  the  costs  are  at  the  discretion  of 
the  judge,  counsel  fees  and  the  full  ex- 
penses of  litigation  are  often  allowed. 
The  Amiable  Xancv,  3  Wheat.  54G  ; 
Tlie  Venus,  5  Wiicat.'  127  ;  The  Apollo, 
9  Id.  362;  Canter  v.  American  and 
Ocean  Ins.  Co.  3  Pet.  307.  And  in  the 
common  law  courts,  even  in  cases  where 
the  costs  are  taxed,  this  theory  has  not 
always  been  acted  upon.  In  actions  on 
covenants  of  warranty,  and  of  seisin  in 
the  sale  of  real  estate,  tlie  reasonable 
expenses  of  defending  a  previous  suit  for 
the  recovery  of  the  proiicrty,  consisting 
of  counsel  fees  and  the  like,  have  been 
recovered.      Staats    v.    Ten    Eyck,    3 


442 


THE  LAW   OF   CONTRACTS. 


[part  II. 


suits,  especially  in  those  for  the  infringement  of  patents,  the 
magnitude  of  the  expense,  in  proportion  to  the  sum  recover- 
able in  the  suit  itself,  has  led  some  courts  to  allow  juries  to 
include  this  expense  in  their  verdicts ;  but  we  cannot  think 
this  legal.  (_;)  The  principle  of  compensation  has,  neverthe- 
less, great  power,  and  courts  now  seek  to  apply  it  to  the 
measurement  of  damages  even  more  than  formerly.  One  of 
its  consequences  is  that  the  plaintiff  can,  generally,  recover, 
according  to  his  proof,  more  or  less  than  the  amount  specified 
in  his  declaration,  (k)  The  only  absolute  limitation  being 
the  amount  of  the   ad   damnum  which    cannot   be  exceed- 


Caines,  111;  Pitcher  r.  Livingston, 4 
Johns.  1;  Waldon  v.  Long,  7  Id.  17.3; 
Sumner  v.  Williams,  8  Mass.  162; 
Sweet  r'.  Patrick,  12  Maine,  9  ;  Hardy 
V.  Nelson,  27  Maine,  525.  But  see  Lef- 
fingwell  V.  Elliott,  10  Pick.  204.  So 
the  expenses  of  defending  a  prior  suit, 
on  a  breach  of  an  implied  warranty  of 
title,  on  the  sale  of  personal  property, 
were  allowed  in  Kingsbury  v.  Smith,  13 
N.  H.  109  ;  but  in  Armstrong  v.  Percy, 
5  Wend.  535,  the  court  refused  to  allow 
more  than  the  taxed  costs.  See  Blais- 
dell  V.  Babcock,  1  Johns.  517  ;  Lewis  v. 
Peake,  7  Taunt.  152.  In  actions  on 
the  case  and  trespass,  juries  have  some- 
times been  allowed,  in  assessing  dam- 
ages, to  take  into  consideration  counsel 
fees  and  other  reasonable  expenses  in 
prosecuting  the  suit.  Linsley  v.  Bush- 
nell,  15  Conn.  225,  Waite,  J.,  dissent- 
ing; Noves  i;.  Ward,  19  Id.  250  ;  Mar- 
shall V.  Betncr,  17  Ala.  833  ;  Whipple  u. 
Cumberland  Manuf.  Co.  2  Story,  661 ; 
Thurston  v.  Martin,  5  Mason,  497.  But 
the  weight  of  authority  appears  to  be 
against  such  allowance.  Barnard  v. 
Poor,  21  Pick.  378  ;  Lincoln  v.  S.  &  S. 
R  R.  Co.  23  Wend.  425 ;  Good  v.  My- 
lin,  8  Barr,  51,  overruling  Wilt  v.  Vick- 
ers,  8  Watts,  235,  and  Rogers  v.  Pales, 
5  Barr,  154,  159;  Young  v.  Turner,  4 
Blackf.  277.  The  authority  of  Whipple 
V.  Cumberland  Manuf.  Co.  and  Thurston 
V.  Martin,  is  overthrown  in  the  late  case 
of  ]3ay  r.  Woodworth,  13  How.  U.  S. 
363,  where  Barnard  v.  Poor,  and  Lin- 
coln V.  S.  &  S.  R.  R.  Co.  were  approved, 
and  what  appears  to  be  the  true  rule 
was  stated  by  Grier,  J.,  after  asserting 
that  vindictive  or  exemplary  damages 
may  be  given  in  certain  cases,  adds  : 
"  It  is  true  that  damages,  assessed  by 


way  of  example,  may  thus  indirectly 
compensate  the  plaintiff"  for  money  ex- 
pended in  counsel  fees  ;  but  the  amount 
of  these  fees  cannot  be  taken  as  the 
measure  of  punishment  or  a  necessary 
element  in  its  infliction." 

( ;■)  Counsel  fees  and  other  expenses 
were  allowed  in  Boston  v.  Manuf.  Co.  2 
Mason, 120  ;  Pierson  v.  Eagle  Screw  Co. 
3  Story,  402 ;  Allen  v.  Blunt,  2  W.  &  M. 
121.  But  the  authority  of  these  is 
much  shaken,  if  not  overthrown,  in 
Thompson  v.  The  Railroads,  Wallace 
Jr.,  164,  and  by  a  dictum  in  Day  v. 
Woodworth,  13  How.  U.  S.  372,  where 
Grier,  J.,  said :  "  The  only  instance  in 
which  this  power  of  increasing  the  '  ac- 
tual damage '  is  given  by  statute,  is  in 
the  Patent  Laws  of  the  United  States. 
But  there  it  is  given  to  the  court  and  not 
to  the  jury.  The  jury  must  find  the 
'  actual  damages '  incui'red  by  the  plain- 
tiff at  the  time  his  suit  was  brought, 
and  if,  in  the  opinion  of  the  court,  the 
defendant  has  not  acted  in  good  faith, 
or  has  been  stubbornly  litigious,  or  has 
caused  unnecessay  trouble  and  expense 
to  the  plaintiff,  the  court  may  increase 
the  amount  of  the  verdict,  to  the  extent 
of  trebling  it.  But  this  penalty  cannot, 
and  ought  not,  to  be  twice  inflicted; 
first,  at  the  discretion  of  the  jury  and 
again  at  the  discretion  of  the  court. 
Tlic  expenses  of  the  defendant,  over  and 
above  the  taxed  costs,  arc  usually  as 
great  as  those  of  the  plaiutifl';  and  yet 
neither  court  nor  jury  can  compensate 
him,  if  the  verdict  and  judgment  be  in 
his  favor,  or  amerce  the  plaintiff  pio 
/also  clamore  beyond  taxed  costs." 

(Jc)  Hutchins  v.  Adams,   3   Greenl. 
174,  Gould's  Pleading,  Ch.,  4,  §  37. 


CH.   VII.]  DAMAGES.  443 

ed.  (/)  We  shall  recur  to  this  question,  of  including  expenses 
in  damages,  again. 

Another  effect  is,  that  circumstances  may  be  shown,  in 
mitigation  or  in  aggravation  of  the  damages,  which  did,  or 
do,  in  fact,  mitigate  or  aggrarate  the  injury  ;  and,  as  we  think, 
only  these,  (w)  We  are  not  now  speaking  of  exemplary  or 
vindictive  damages.  And  in  cases  which  do  not  raise  this 
question,  evidence  of  the  defendant's  motives,  or  of  anything 
which  affects  only  the  moral  character  of  the  transaction, 
ought  not  to  be  admitted,  or  to  have  any  weight  with  the 
jury.  The  intention,  therefore,  is  not  an  element  in  the  case, 
unless  it  belongs  directly  to  the  issue.  That  is,  the  intention 
should  not  be  shown  by  either  party,  to  increase  or  lessen 
the  damages,  unless  a  bad  purpose  is  one  of  the  alle- 
gations of  the  plaintiff,  expressly,  or  by  implication  of  the 
law,  because  necessarily  involved  in  the  allegations,  (n)  Or, 
perhaps,  unless  a  part  of  the  case  consists  of  words  or  acts 
which  are  harmless,  if  they  are  said  or  done  as  the  manifesta- 
tion of  one  intention  or  feeling,  and  injurious  if  of  another,  (o) 

Compensation  for  injuries  to  property,  or  for  a  breach  of 
contract  in  relation  to  property,  is  far  more  easily  measured 
by  money,  than  when  it  is  sought  for  an  injury  to  the  per- 
son or  reputation.  Nevertheless,  it  is  compensation  only 
which  is  to  be  given  ;  and  the  jury  must  measure  this  as  well 
as  they  can,  taking  into  consideration  the  whole  injury  which 
was  sustained,  and  all  its  parts ;  as  suffering,  bodily  and 
mentally,  loss  of  time,  or  of  money,  or  of  labor,  and  the  many 
mischiefs  which  ensue  from  a  loss  of  reputation,  in  a  com- 
munity where  one  without  a  reputation  is  in  effect  an  out- 
law. 

The  bodily  pain  resulting  from  an  injury,  is  always  to  be 
considered   in    estimating  damages,  (p)     But    mere  mental 

{I)  Hoblin  V.  Kimble,  1  Bulstrode,  49  ;  cution.    Jones  v.  Gwynn,  10  Mod.  148; 

Curtiss   V.  Lawrence,  17   Johns.    Ill;  Wiggin  i-.  Coffin,  3  Story,  1. 

Fish  V.    Dodge,  4  Denio,   311;  Four-  ,  \  -nr    ^i      i.              tt     i  •        ,   m 

mer^.FaggoM/s  Scam.  3^7;  Cameron  1°)  Weatherstonc   r^  Hawkins    1  T. 

V.  Boyle,  iTOreene,  (Iowa),  154.  J"//  r^,      Jf'^'''   ^^'^'^"u^  ^'''-  ^ 

(m)See    3    American    Jurist,    287,    PulL  587^    See  Prosser  v.  Browage,  4 

where  this  question   is   discussed   with  '  *"'     ■  -'   • 

great  learning  and  ability,  by  Mr.  Jus-  (;*)  Moore  v.  Albany  &  S.  R.  II.  Co. 

lice  Metcalf.  10  Barb.  621  ;  Beardsley  i'.  Swann,  4 

(n)  As  in  actions  for  malicious  prose-  McLean,  333. 


444 


THE   LAW   OF   CONTRACTS. 


[part  II. 


suffering  seems,  in  the  cases,  to  be  generally  disregarded,  un- 
less the  injury  be  wanton  and  malicious,  (q)  Where  a  con- 
tract is  broken  under  aggravating  circumstances,  these  may 
sometimes  be  given  in  evidence  to  increase  the  damages,  (r) 
In  general,  however,  the  intention  is  not  regarded  ;  for  it 
seems  to  be  the  rule  of  the  common  law,  that  a  man  suffers 
the  same  injury  from  an  actual  tresjDass,  whether  it  was  inten- 
tional or  not ;  that  is,  the  same  amount  of  what  the  law  calls 
injury,  when  inquiring  what  shall  be  compensated,  (s)  Hence 
a  lunatic  has  been  held  liable  for  the  injury  he  inflicted,  (t) 
But,  in  such  a  case,  nothing  can  enter  into  the  damages 
which  savors  of  a  vindictive  or  exemplary  character,  (u) 
If  circumstances  are  admitted  in  aggravation  of  damages 
which  did  not  aggravate  the  injury,  a  wrong  is  done.  But 
there  are  cases  in  which  circumstances  may  be  admitted,  that 
show  the  true  character  of  the  facts  which  constitute  the  in- 
jury, and  may  thus,  in  effect,  aggravate  the  damages,  although 
they  formed   no  part  of  the  injury  complained  of.     Thus  in 


(q)  Flemington  v.  Smithers,  2  C  & 
P.  202:  Blake  v.  Mulland  R.  Co.  10 
Eng.  Law  &  Eq.  437.  See  Moore  v. 
Albany  &  S.  R.  R.  Co.  10  Barb.  G21. 

(r)  111  Coppiii  V.  Bratliwaitc,  8  Jar. 
875,  the  action  was  assumpsit  on  a  con- 
tract to  carry  the  plaintiff  in  a  ship 
from  London  to  Shcerncss.  It  was  al- 
leged, as  a  breach,  that  the  defendants 
by  their  agents,  caused  the  ])laintift'  to 
be  disembarked  at  an  intermediate  port, 
in  a  scandalous  and  disgraceful  manner, 
and  used  towards  him  contemptuous 
and  insulting  language.  It  was  held 
that  these  aggravating  circumstances 
could  be  shown  to  increase  tlic  dam- 
ages. Parke,  B.,  said  :  ''  With  respect 
to  what  was  said  by  the  ca])tain,  at 
the  time  of  turning  tlie  plaintiff  out  of 
the  vessel,  I  think  it  was  pro])erly  re- 
ceived. There  can  l)e  no  doubt  that 
the  defendants  are  liable  for  every  thing 
done  in  breach  of  the  contract  by  tlie 
ca])tain,  acting  as  their  servant.  The 
breach  of  contract  alleged  in  the  decla- 
ration, is  the  refusing  to  carry  the  plain- 
tiffin  the  shi]),  and  turning  him  out  of 
it,  in  a  contemptuous  manner,  before  the 
termination  of  the  voyage.  The  turn- 
ing liim  out  is  jiart  of  the  brcacli,  and 
the  mode  of  turning  him  out  is  ]iart  of 
the  evidence  in  tlic  case.    A  contract  is 


broken,  and  it  is  quite  impossible  to 
exclude  from  the  view  of  tiie  jury  the 
circumstances  under  wliich  it  was  bro- 
ken. Surely,  it  would  make  a  most 
material  difference  if  the  contract  were 
broken  because  it  would  be  inconve- 
nient to  carry  him  to  his  journey's  end, 
and  if  he  were  turned  out  under  circum- 
stances of  aggravation.  Suppose,  in- 
stead of  a  man  lauded  at  Gravesend 
from  a  steamboat,  this  had  been  tho 
case  of  a  passenger  in  a  ship  bound  to 
the  West  Indies,  and  that  he  were  put 
ashore  on  a  desert  island,  without  food, 
or  exposed  to  the  burning  sun  and  the 
danger  of  wild  beasts,  or  even  landed 
among  savages ;  would  not  evidence 
be  receivable  to  show  the  state  of  the 
island  where  he  was  left,  and  the  cir- 
cumstances attending  the  violation  of 
the  contract '! " 

(s)  3  American  Jurist,  391,  ct  scq. ; 
Lambert  v.  Bessey,  T.  Raymond,  421  ; 
James  v.  Campbell,  5  C.  &  P.  372  ; 
llav  V.  The  Cohoes  Co.,  3  Barb.  Sup. 
C.42  ;  McBribe  v.  McLaughlin,  5  Watts, 
376. 

(t)  Morse  r.  Crawford,  17  Vermont, 
499. 

(«)  Ivrom  I'.  Schoonmakcr,  3  Barb. 
047. 


CH.   VII.] 


DAMAGES. 


445 


an  action  of  slander,  it  has  been  said  that  the  plaintiff  may 
prove,  in  aggravation  of  damages,  other  words  than  those  he 
sets  forth  as  constituting  the  slander.  This  we  think  very 
doubtful,  in  point  of  law  and  of  right.  But  he  may  show 
other  words,  in  order  to  illustrate  and  make  apparent  the 
meaning,  character,  and  effect  of  the  words  which  he  alleges. 
These  other  words  may  inflict  other  and  further  injury,  but 
must  not  be  used  or  considered  by  the  jury  for  the  purpose 
of  increasing  the  damages  to  be  rendered  in  this  action,  be- 
cause damages  for  those  very  words  may  be  recovered  in  an 
action  founded  upon  them.  It  seems  reasonable,  however, 
that  a  jury  may  use  these  other  words  in  explanation  of  those 
declared  upon,  although  a  distinct  action  may  be  brought  upon 
them,  provided  they  are  not  permitted  to  be  considered  as 
increasing  the  injury  inflicted  by  the  words  declared  on, 
and  so  of  increasing  the  damages,  (v) 


(r)  There  is  much  diversity  in  the 
English  Nisi  Prius  decisions,  upon  the 
questions  arising  relative  to  the  intro- 
daction  of  other  words  than  those  for 
which  the  action  is  brought,  as  evidence 
in  suits  for  slander  or  libel.  The  subject 
was  first  thoroughly  considered  in  West- 
minster Hall,  in  the  late  case  of  Peer- 
son  V.  Lemaitre,  5  Man.  &  Gr.  700  ;  6 
Scott,  N.  K.  607,  where  the  Nisi  Prius 
decisions  were  cited  and  commented  on 
by  counsel.  The  action  was  for  libel, 
and  the  communication  was  not  equivo- 
cal, or  prima  facie  privileged,  so  that  ex- 
press malice  need  be  sliown,  in  order  to 
maintain  the  action.  It  was  held  that 
other  communications,  containing  in 
substance  a  repetition  of  the  same  libel- 
lous matter,  and  published  after  the  suit 
was  brought, and  in  themselves  actiona- 
ble, could  be  introduced  to  show  that 
the  defendant  was  actuated  by  malice 
in  fact.  Timlal,  C.  J ,  said  :  "  And  this 
appears  to  us  to  be  the  correct  rule,  viz., 
that  either  party  may,  witii  a  view  to 
the  damages,  give  evidence  to  prove  or 
disprove  the  existence  of  a  malicious 
motive  in  the  mind  of  the  publisher  of 
defamatory  matter ;  but  that,  if  tlie  evi- 
dence given  for  that  purpose  establishes 
another  cause  of  action,  the  jury  should 
be  cautioned  against  giving  any  damages 
in  respect  of  it.  And,  if  such  evidence 
is  offered  merely  for  the  purpose  of  ob- 
taining damages   for   such   subsequent 

VOL.   II.  38 


injury,  it  will  be  properly  rejected.  .  . 
Upon  principle,  we  think  that  the  spirit 
and  intention  of  the  party  publishing 
a  libel,  are  fit  to  be  considered  by  a 
jury,  in  estimating  the  injury  done  to 
the  plaintiff";  and  that  evidence  tending 
to  prove  it,  cannot  be  excluded,  simply 
because  it  may  disclose  another  and  dif- 
ferent cause  of  action."  The  law  does 
not  appear  to  be  settled  in  this  country. 
In  Thomas  v.  Croswell,  7  Johns.  264, 
and  Inman  v.  Foster,  8  Wend.  602,  it 
was  held,  in  the  first  case,  that  in  actions 
for  libel  the  plaintiff  may  give  in  evi- 
dence other  publications  which  are  not 
libellous ;  and,  in  the  second  case,  that 
in  actions  for  verbal  slander,  the  plain- 
tiff" may  prove  other  slanderous  words, 
where  the  statute  of  limitations  has  run 
as  to  those  words.  And  in  Root  v. 
Lowdes,  6  Hill,  518,  in  a  case  where 
malice  was  implied  by  law,  the  court 
held  that  tlie  repetition  of  the  same 
words  should  be  received,  but  would 
not  allow  the  plaintiff"  to  prove  any 
words  which  might  be  the  subject  of 
another  action.  See  Kecnholte  v.  Beck- 
er, 3  Denio,  346;  Kendall  v.  Stone,  2 
Sandf.  Sup.  269.  In  Bodwell  v.  Swan, 
3  Pick.  376,  it  was  held  that  a  repetition 
of  the  words  for  which  the  action  was 
brought,  or  the  uttering  of  words  of 
simihvr  import,  might  l)e  given  in  evi- 
dence, to  show  that  the  first  uttering  of 
the  words  was  malicious.    But  the  court 


446  THE   LAW   OF   CONTRACTS.  [PART   II. 

SECTION  IV. 
OF   EXEMPLARY  AND   VINDICTIVE  DAMAGES. 

Whether  damages  may  be  vindictive  or  exemplary,  in  the 
strict  sense  of  these  words,  that  is,  whether  in  actions  ex  de- 
lido,  (to  which  it  is  generally  admitted  that  exemplary  dam- 
ages must  be  confined,)  {w)  after  a  jury  have  gone  to  the  full 
length  of  adequate  compensation  for  the  whole  injury  sus- 
tained by  the  plaintiff",  the  law  authorizes  them  to  begin  anew, 
and  add  to  these  damages  something  more  by  way  of  punish- 
ment to  the  defendant,  is  a  grave  and  difficult  question,  and 
high  authorities  stand  ranged  upon  the  affirmative  and  nega- 
tive. On  the  one  hand,  it  is  said  that  there  is  nothing  puni- 
tive in  the  nature  of  civil  actions,  and  that  if  anything  of  the 
kind  enters  into  them,  it  is  an  error  or  an  abuse  which  does 
the  great  mischief  of  confounding  two  perfectly  distinct  juris- 
dictions. If  one  man  sues  for  an  injury,  it  should  not  enter  in- 
to his  compensation  that  the  wrong  done  was  of  bad  example 
and  injurious  effect  to  others;  for  if  so  others  who  are  injured 
can  sue  also  ;  and  if  beyond  the  injury  which  can  be  reached 
thus,  there  lies  a  mass  of  general  wrong  which  no  one  man 
can  take  hold  of,  let  the  State  come  with  its  criminal  pro- 
cess. But  if  these  two  things  are  mingled,  then  the  civil  pro- 
cess for  remedy  and  compensation  loses  its  just  measure,  and 
the  criminal  process  is  either  not  applied  or  is  made  inefficient, 
by  the  fact  that  its  work  is  done,  however  imperfectly,  else- 
where. 

On  the  other  hand  it  was  distinctly  asserted,  so  long  ago 
as  by  Lord  Camden,  that,  "  damages  are  designed  not  only 

also  declared  that  they  could  go  no  McLaughlin,  2  S.  &  K.  469.  In  Schoo- 
further,  and  that  they  could  not  per-  nover  v.  Eowe,  7  Blackf.  202,  it  was 
mit  a  distinct  calumny,  uttered  by  the  held  that  a  repetition  of  the  same  words- 
defendant,  to  be  given  in  evidence  to  since  the  commencement  of  the  suit 
prove  his  malice  in  speaking  tlie  words  could  not  be  taken  into  consideration  in 
for  wliich  the  action  was  brought.  Sec  assessing  damages,  although  they  might 
Watson  V.  Moore,  2  Cush.  133.  In  be  given  to  show  malice.  See  Burton 
Wallis  V.  Mease,  3  Binney,  546,  it  was  v.  Edwards,  1  Smith,  (Ind.)  7;  Bigden 
held  that  other  words  tlian  tliose  in  the  v.  Wolrott,  6  Gill  &  Johns.  403  ;  Wag- 
declaration  could  be  introduced  to  show  ncrr.  Ilolburmcr,  7  Gill,  296, 
malice,  but  that  the  damages  must  be 

given  for  those  words  only  for  which  («•)    Sec    Coppin    v.    Brathwaite,   8 

the  action  was  brought.     Sec  Kean  v.  Jurist.  875,  cited  supra,  n.  (?). 


en.    VII.]  DAMAGES.  447 

as  a  satisfaction  to  the  injured  person,  but  as  a  punishmenl  to 
the  guillyP  {x)  And  as  all  law  should  have  for  its  constant 
end  the  prevention  of  wrong,  the  principle  of  punishment 
may  well  be  mingled  with  that  of  compensation,  in  order  to 
effect  this  purpose.  And  on  this  subject  authorities  are  so 
numerous,  so  various,  and  so  strong,  that  it  must  be  conceded 
as  a  nearly  established  rule  of  law,  that  in  certain  cases,  as 
in  actions  for  libel,  slander,  assault  and  battery,  false  imprison- 
ment, malicious  prosecution,  seduction,  and  the  like,  the  jury 
may  give  some  damages  for  the  purpose  of  punishment, 
which  on  other  grounds  they  would  not  give,  (y/) 

In  regard  to  the  authorities,  it  may  be  confessed  that  by 
far  the  larger  part  are  obiter,  and  some  of  them  quite  uncalled 
for ;  and  that  of  some  of  those  which  would  have  most 
weight,  the  meaning  is  qualified  and  explained  by  other 
expressions  used,  or  greatly  restrained  by  the  facts  of  the 
case.  Moreover,  in  nearly  all  cases  in  which  there  is  such 
malice  as  will  allow  the  giving  of  exemplary  damages,  there 
is  some  insult  or  injury  to  the  feelings  for  which  the  damages 
cannot  be  assessed  by  any  definite  rule.  Hence  it  may  be 
difficult  to  show,  in  any  particular  case,  that  damages  have 
been  allowed  beyond  the  amount  of  the  pecuniary  loss  and 
the  injury  to  the  person  and  to  the  feelings,  unless  we  rely 
upon  the  precise  words  used  in  the  instructions  of  the  court. 
But  with  all  allowance,  there  remain  positive  adjudications, 
and  distinct  and  emphatic  assertions,  which  go  very  far  in- 
deed to  establish  the  lawfulness,  in  certain  cases,  of  vindic- 
tive damages. 

We  cannot  believe  that  it  was  ever  a  principle  of  the 
ancient  and  genuine  common  law,  that  damages  should  be 
punishment,  or  that  the  civil  remedy  for  a  wrong  done  should 
be  punitive  to  the  wrongdoer  as  well  as  compensative  to  the 
sufferer.     Damages  were   not,  originally,  at  least,  designed 

(x)  5  Campbell's  Lives  of  the  Lord  Ev.§  2r)3,note,  by  Mr.Grecnleaf :  andon 

Chancellors,  249.  the  otlicr  side,  in  the  Law  Reporter  for 

June,  1847,  and   in    Sedgwick  on  the 

[y)  This  question  has  been  ably  argn-  Measure  of  Damages,  by  Mr.  Sedgwick, 

cd  on  the  side  against  allowing   exem-  The  two  articles   in  the  Law  Reporter 

plary  damages,  in  3  Am.  Jurist,  287,  by  are  also  published  in   the   Appendi.x.  to 

Hon.  Theron  Metcalf,  and  in  the  Law  the  second  edition  of  Sedgwick  on  the 

Reporter  for  April,  '47,  and  in  2  Green!.  Measure  of  Damages. 


448  THE   LAW   OP   CONTRACTS.  [PART  II. 

for  any  such  purpose.  But  it  may  still  be  a  question  whether 
the  introduction  of  this  principle,  to  a  certain  extent,  and  in 
certain  cases,  may  not  rest  on  good  reasons,  as  well  as  good 
authorities.  The  common  law  is  not  perfect,  nor  so  unwise 
as  to  call  itself  perfect.  It  has  its  civil  process  for  compen- 
sation, and  its  criminal  process  for  punishment,  and  it  wisely 
demands  that  these  should  be  kept  distinct.  But  it  might 
not  be  wise  to  insist  that  the  work  of  punishment  should  not 
be  done  at  all,  or  should  be  done  very  imperfectly,  because  the 
proper  criminal  process  is  unequal  to  the  requirements  of 
some  cases,  although  this  work  can  be  well  and  adequately 
done  by  the  civil  process  in  precisely  these  cases.  There  are 
many  wrongs,  '■'■  pessimi  cxempli,^^  of  which  the  interest  of 
the  community  demand  the  prevention,  but  which  criminal 
process  cannot  reach  at  all,  or  cannot  punish  with  any  ade- 
quacy. The  crime  of  seduction,  sometimes  worse  in  the 
character  which  it  indicates,  and  in  the  injury  which  it  in- 
flicts, than  murder,  is  one  which  criminal  law  cannot  touch  ; 
and  very  many  cases  where  a  very  great  injury  is  com- 
pounded of  elements  which  the  criminal  law  if  it  does  not 
ignore  does  not  profess  to  regard  as  important,  illustrate  the 
occasional  insufficiency  of  this  branch  of  law.  What  good 
reason  is  there  why  what  it  cannot  do,  although  it  ought  to 
be  done,  should  not  be  done  for  it,  by  a  collateral  branch  of 
the  law  ?  In  the  action  for  seduction,  which  must  be  brought 
for  loss  of  service,  or  for  a  trespass  quare  clausum,  laying  the 
seduction  only  as  an  incident,  the  law  first  requires  that  the 
service,  or  the  trespass,  should  be  proved  ;  but  when  this 
formal  requirement  is  proved,  it  is  forgotten,  and  the  damages 
arc  measured  by  a  totally  different  standard.  It  may  be  said, 
that  here  only  the  substantial  g-7'avamen  is  made  the  measure 
of  compensation,  instead  of  the  formal  gravamen.  But  it 
seems  to  be  ruled  in  modern  times,  that  when,  in  such  a  case, 
or  at  least  in  an  action  for  breach  of  promise  of  marriage,  a 
defendant  defends  himself  by  impeaching  the  character  of  the 
woman,  which  he  may  do,  if  he  makes  this  a  distinct  point 
of  his  defence  and  then  fails  in  the  proof  of  it  on  the  trial- 
the  jary  may  consider  this  attemjit  as  good  cause  for  swell- 
ing the  damages.     Such  ruling  recommends  itself  to  our 


en.  VII.] 


DAMAGES. 


449 


moral  feelings,  and  to  a  sense  of  right  and  justice ;  but  it 
would  be  very  difTicult  to  maintain  it  as  a  rule  of  law,  on  any 
other  than  the  punitive  principle,  {yy) 

It  is  unfortunate  that  the  word  "  vindictive  "  has  been 
used  as  descriptive  of  these  damages  ;  "  exemplary  "  is  much 
better.  For,  on  the  whole,  we  are  satisfied  that  the  courts 
of  this  country  generally  permit  a  jury  to  give,  in  certain  cases, 
damages  which  exceed  the  measure  of  legal  compensation, 
and  are  justified  by  the  principle  that  one  found  guilty  of  so 
great  an  offence  should  be  made  an  example  of,  in  order  to 
deter  others  from  the  like  wrong-doing,  (c)  In  New  Hamp- 
shire, («)  Connecticut,  {b)  New  York,  (c)  Pennsylvania,  {d) 
Alabama,  (e)  and  Louisiana,  (/)  this  has  been  distinctly 
asserted,  and  the  Supreme  Court  of  the  United  States  has 
positively  and  emphatically  recognized  "  exemplary  damages" 
as  lawful,  (g-)     And  we  are  not  aware  of  any  authoritative 


{ijij)  See  vol.  1,  p.  551,  note,  (;■)• 

(~)  There  are  numerous  P^nglish 
cases  m  which  it  has  been  held  that 
juries  may  give  exemplary  damages  ;  — 
as  in  trespass  for  assault  and  imprison- 
ment under  a  general  warrant  issued  by 
the  Secretary  of  State,  Huekle  v.  Money, 
2  Wils.  205;  — in  trespass  quare  cJausum 
fregit^for  entering  the  plaintiff's  land, 
firing  at  game,  and  using  intemperate 
language,  Nurest  v.  Harvey,  5  Taunt. 
442;  —  in  trespass  quare  clausum  fregil 
for  entering  the  plaintiff's  close,  and 
poisoning  the  plaintiff's  poultry,  Sears 
r.  Lyons,  2  Stark.  317:  —  in  trespass 
for  debauching  the  plaintiff's  daughter, 
Sullidge  V.  Wade,  3  Wils.  18.  In  Doe 
V.  Filliter,  13  M.  &  W.  75,  it  M'as.said ; 
"  In  actions  for  malicious  injuries,  ju- 
ries have  been  allowed  to  give  vindictive 
damages  and  to  take  all  the  circum- 
stances into  consideration."  In  Brewer 
V.  Dew,  1 1  M.  &  W.  625,  it  was  held  that 
vindictive  damages  might  be  given  in 
an  action  of  trespass, for  seizing  the 
plaintiff's  goods  under  a  fiilse  and  im- 
founded  claim,  wherei)y  he  was  preju- 
diced in  his  business,  and  believed  by  his 
customers  to  be  insolvent,  and  certain 
lodgers  left  his  house. 

(a)  Sinclair  v.  Tarbox,  2  N.  H.  135  ; 
Whipple  V.  Walpole,  10  Id.  130. 

(h)  Linsley  v.  Buslmell,  15  Conn. 
225  ;  Huntley  v.  Bacon,  15  Id.  273. 

(c)  Tillotson  V.  Cheetham,  3  Johns. 

38* 


56  ;  Woert  v.  Jenkins,  14  Id.  352  ;  King 
V.  Root,  4  Wend.  113,  139  ;  Brizsee  v. 
Maybee,  21  Wend.  144,  where  exempla- 
ry damages  were  allowed  in  an  action 
of  replevin ;  Lifft  v.  Culver,  3  Hill, 
180;  Kendall  v.  Stone,  2  Sandf.  269. 
See  able  argument  of  counsel  in  Kendall 
V.  Stone,  1  Selden,  14. 

[d)  Sommer  u.  Wilt,  4  Serg.  &  R.  19  ; 
McBride  v.  McLaughlin,  5  Watts,  375; 
Phillips  V.  Lawrence,  6  W.  &  S.  1 54 ; 
Amer  v.  Longstreth,  10  Penn.  St.  148. 

(e)  Donnell  v.  Jones,  13  Ala.  N.  S. 
490,  502  ;  Ivev  v.  McQueen.  17  Id.  408  ; 
Mitchell  V.  Billingsley,  17  Id.  391. 

(/)  Neilsony.  Morgan,  2  Martin, (La.) 
256  ;  Gaulden  v.  McPhaul,  4  La.  Ann. 
79.  Exemplary  damages  are  also  al- 
lowed in  Kentucky  ;  Jennings  v.  Mad- 
dock,  8  B.  Mon.  430;  —  in  Illinois, 
Grable  v.  Margrave,  3  Scam.  372  ;  Mc- 
Namara  v.  King,  2  Gilman,  432  ;  — in 
North  Carolina, Wylie  v.  Sraitherman,  8 
Iredell,  236:  Gilreath  v.  Allen,  10  Ire- 
dell, 67  ;  —  in  South  Carolina,  Spikes 
V.  English,  4  Strobhart,  34  ;  —  in  Dela- 
ware, Steam  Boat  Co.  i'.  Whillden,  4 
Harrington,  228  ;  Jefferson  v.  Adams, 
4  Id.  321  ;  Cummins  v.  Puslcy,  4  Id. 
315:  —  in  Missouri,  Milburn  v. 
14  Missouri,  104. 

(ij)  In  Day  v.  Woodworth,  13  How- 
ard, 363,  the  action  was  trespass  for 
pulling  down  a  mill-dam.  Grier^  J.,  in 
delivering  the  opinion  of  the  court  said  : 


450 


THE   LAW   OF   CONTRACTS. 


[part  II. 


and  direct  judicial  decision,  which  declares  that  such  dam- 
ages are  never  lawful.  But,  at  the  same  time,  we  think 
there  is  a  growing  caution  as  to  the  application  of  this  rule, 
and,  perhaps,  a  tendency  to  restrict  it  to  cases  in  which  the 
direct  criminal  process  fails  wholly  or  in  a  good  degree,  and 
not  to  allow  it  to  justify  an  excessive  and  unreasonable  en- 
largement of  damages,  (k) 


'  It  is  a  well-established  principle  of 
the  common  law,  that  in  actions  of  tres- 
pass, and  all  actions  upon  the  case  for 
torts,  a  jury  may  inflict  what  are  called 
exemplary,"  punitive,  or  vindictive  dam- 
ages upon  a  defendant,  having  in  view 
the  enormity  of  his  offence,  rather  than 
the  measure  of  compensation  to  the 
plaintiff.  We  are  aware  that  the  pro- 
priety of  this  doctrine  has  been  ques- 
tion by  some  writers  ;  but  if  repeated 
judicial  decisions  for  more  than  a 
century  are  to  be  received  as  the  best 
exposition  of  what  the  law  is,  the  ques- 
tion will  not  admit  of  argument.  By 
the  common  as  well  as  by  statute  law, 
men  arc  often  punished  for  aggravated 
misconduct,  or  lawless  acts,  by  means 
of  a  civil  action,  and  the  damages  in- 
flicted by  way  of  penalty  or  punish- 
ment, given  to  the  party  injured.  In 
many  civil  actions,  such  as  libel,  slan- 
der, seduction,  &c..  the  wrong  done  to 
the  plaintiff  is  incapable  of  being  mea- 
sured by  a  money  standard ;  and  the 
damages  assessed  depend  on  the  cir- 
cumstances, showing  the  degree  of  mo- 
ral turpitude  or  atrocity  of  the  defen- 
dant's conduct,  and  may  properly  be 
termed  exemplary,  or  vindictive,  rather 
tlian  compensatory.  In  actions  of  tres- 
pass wliere  the  injury  has  been  wanton 
and  malicious,  or  gross  and  outrageous, 
courts  ]>ermit  the  juries  to  add  to  the 
measured  compensation  of  the  plaintiff, 
which  he  would  have  been  entitled  to 
recover  had  the  injury  been  inflicted 
without  design  or  intention,  something 
further,  by  way  of  punishment  or  exam- 
ple, which  has  sometimes  been  called 
'  smart  money.'  This  has  been  always 
left  to  the  discretion  of  tlie  jury,  as  tlie 
degree  of  punishment  to  be  tiius  in- 
flicted must  depend  on  the  peculiar  cir- 
cumstances of  each  case."  Sec  also 
Conard  v.  Pacific  Ins.  Co.  G  Peters, 
2G2 ;  Walker  v.  Smith,  1  Wash.  C.  C. 
152;  Boston  Manuf.  Co.  v.  Fiske,  2 
Mason,  120;  Stimpson  v.  The  Railroads, 
1  Wallace,  jr.  104  ;  Kalston  r.  The  State 


Rights,   1    Crabbe,    (Dist.   Ct.   Penn.) 
22. 

(h)  In  Austin  v.  Wilson,  4  Cush. 
273,  it  was  held  that  exemplary  dama- 
ges could  not  be  recovered  in  an  action 
for  an  injury  which  is  also  punishable 
by  indictment.  Mctcalf,  J.,  in  deliver- 
ing the  opinion  of  the  court  said :  "  Whe- 
ther exemplary,  vindictive,  or  punitive 
damages  —  that  is,  damages  beyond  a 
compensation,  or  satisfaction  for  the 
plaintiff's  injury  —  can  ever  be  legally 
awarded,  as  an  example  to  deter  others 
from  committing  a  similar  injury,  as  a 
punishment  of  the  defendant  for  his 
malignity  or  wanton  violation  of  social 
duty,  in  committing  the  injury  which  is 
the  subject  of  the  suit,  is  a  question 
upon  which  we  are  not  now  required 
or  disposed  to  express  an  opinion.  The 
argument  and  the  authorities  on  both 
sides  of  this  question  arc  to  be  found  in 
2  Greenl.  on  Ev.  tit.  Damages,  and 
Sedgwick  on  Damages,  39,  et  ^q.  If 
such  damages  are  ever  recoveraole,  we 
arc  clearly  of  opinion  that  they  cannot 
be  recovered  in  an  action  for  an  injury 
which  is  also  punishable  by  indictment, 
as  libel,  and  assault  and  battery.  If 
they  could  be,  the  defendant  might  be 
punished  twice  for  the  same  act.  We 
decide  the  present  case  on  this  single 
ground.  See  Thorley  i'.  Lord  Kerry,  4 
Taunt.  355  ;  Whitney  v.  Hitchcock,  4 
Denio,  461 ;  Taylor  v.  Carpenter,  2 
Woodb.  &  Min.  1,  22."  But  in  Cook  v. 
Ellis,  6  Hill,  466  ;  Jefferson  v.  Adams, 
4  Harrington,  321,  vindictive  damages 
were  allowed,  although  the  defendants 
had  been  indicted  and  fined  for  tlie  same 
injury.  See  Jacks  v.  Bell,  3  Car.  and 
Payne,  316.  In  Whitney  ».  Hitchcock, 
4  Denio,  461,  it  v/as  held  that  in  trespass 
for  assault  and  battery  upon  the  child 
or  servant  of  the  plaintiti',  the  measure 
of  damages  is  the  actual  loss  which  the 
plaintiff  has  sustained  ;  and  exemplary 
damages  cannot  be  given,  though  the 
assault  lie  of  an  indecent  character, 
upon  a  female,  and  under  circumstances 


en.  VII.] 


DAMAGES. 


451 


There  is,  however,  a  difficulty,  as  well  as  a  great  difference 
among  the  courts,  in  their  practice  in  relation  to  verdicts 
which  are  alleged  to  be  excessive.  In  those  cases  in  which 
compensative  damages  may  be  ascertained  within  narrow 
limits,  by  computation,  it  is  easy  to  say  when  these  limits 
are  certainly  exceeded.  And  generally,  in  these  cases,  and  in 
actions  upon  contract,  or  on  tort,  when  no  actual  bad  motive 
is  relied  upon,  it  is  for  the  court  to  direct  the  jury  in  what 
way,  or  by  what  rule  or  measure,  they  should  assess  the 
damages.  But  there  are  cases  which  seem  to  justify  the 
remark  sometimes  made  in  them  by  the  courts,  that  there  is 
no  rule  by  which  the  damages  can  be  measured,  and  they 
must  be  left  to  the  discretion  of  the  jury,  (i)     And  in  such 


of  great  aggravation.  The  court  said ; 
"  The  present  suit  is  brouglit  for  the  loss 
of  the  services  of  his  servant,  which  the 
plaintitl'says  he  has  sustained  in  con- 
sequence of  the  injur}"  which  the  de- 
fendant has  inflicted  upon  her.  This  he 
is  entitled  to  recover ;  and  if  sick- 
ness had  followed,  he  could  have  claim- 
ed to  be  reimbursed  for  tlic  expenses 
attending  such  sickness;  but  we  all 
think  that  he  cannot  recover  beyond  his 
actual  loss.  The  young  female  can 
herself  maintain  an  action,  in  which  her 
damages  may  be  assessed  according  to 
the  rule  laid  down  at  the  trial ;  and  if 
the  father  could  likewise  recover  them 
in  this  case,  they  could  be  twice  claim- 
ed in  civil  actions,  and  the  defendant 
would  also  be  liable  to  indictment.  The 
action  for  seduction  is  peculiar,  and 
would  seem  to  form  an  exception  to 
the  rule,  that  actual  damages  only  can 
be  recovered,  where  the  action  is  for  loss 
of  service  consequential  upon  a  direct 
injury ;  but  there  the  party  directly  in- 
jured' cannot  sustain  an  action,  and  the 
rule  of  damages  has  always  been  con- 
sidered as  founded  upon  special  reasons 
only  applicable  to  that  case."  In  Kip- 
pey  I'.  Miller,  II  Iredell, 247, it  was  held, 
under  a  statute  enacting  that  all  actions 
of  trespass  and  trespass  on  the  case 
shall  survive,  when  they  arc  not  merely 
vindictive ;  that  in  an  action  against 
the  representatives  of  one  deceased, 
who  had  committed  a  trespass  upon  the 
property  of  the  plaintiff,  the  ))laintitl^' 
cannot,  no  matter  however  aggravated 
the  trespass  may  have  been,  recover 
vindictive  damages.  In  Amcr  v.  Long- 
streth,  10  Pcnn.  St.  145,  it  was  held,  in 


an  amicable  action  of  trespass  instituted 
to  try  the  rights  of  the  parties,  that  the 
damages  must  be  measured  by  the  actual 
injury,  although  there  might  have  been  a 
wanton  invasion  of  the  plaintiff's  rights. 
In  Singleton  v.  Kennedy,  9  B.  Mon. 
222,  it  was  held  that  in  an  action  on  the 
case  for  fraud,  in  the  sale  of  personal 
property,  the  jury  were  not  authorized 
to  assess  vindictive  damages.  But  see 
Spikes  V.  English.  4  Strobli.  34.  In  Bar- 
nard V.  Poor,  21  Pick.  378,  it  was  held, 
in  an  action  on  the  case  against  the  de- 
fendant, for  carelessly  and  negligently 
setting  fire  on  his  own  land,  whereby  the 
plaintifi''s  property  on  adjoining  land 
was  destroyed,  that  it  was  not  material 
M'hether  the  proof  established  (jross  neg- 
ligence or  only  want  of  ordinary  care, 
for  in  either  case  the  plaintiff's  would 
be  entitled  to  recover  in  damages  the 
actual  amount  of  loss  sustained,  and  no 
more,  in  the  form  of  vindictive  damages 
or  otherwise.  But  in  Whipple  v.  Whip- 
ple, 10  N.  H.  130,  it  was  held  that  in 
cases  of  gross  negligence  exemplary- 
damages  might  be  recovered. 

(()  In  Berry  v.  Vreeland,  1  N.  J.  183, 
Green,  C.  J.,  in  delivering  the  oi>inion  of 
the  court  in  an  action  of  trespass  quare 
clausum ./regit,  said:  "  The  court,  in  ac- 
tions of  trespass,  especially  for  person- 
al torts,  when  damages  can  be  gauged 
by  no  fi.xed  standard,  but  necessarily 
rest  in  the  sound  discretion  of  the  jury, 
interferes  with  a  verdict  on  the  mere 
ground  of  excessive  damages,  with  re- 
luctance, and  never  except  in  a  clear 
case.  But  when  the  plaintiff  complains 
of  no  injury  to  his  i)erson  or  his  feel- 
ings—  where    no    malice  is   shown  — 


452 


THE  LAW  OF  CONTRACTS. 


[part  II. 

cases  a  verdict  would  not  be  disturbed  for  excess,  unless  it 
indicated  wilful  perversity,  or  blinding  prejudice  or  passion, 
or  an  entire  misapprehension  of  the  merits  of  the  case  and 
the  duty  of  a  jury.  (J) 

From  all  injuries  the  law  implies  that  damages  are  sus- 
tained. If  the  injury  be  nothing  more  than  the  invasion  of 
a  legal  right,  the  law,  usually  at  least,  implies  nothing  more 
than  nominal  damages,  for  these  suffice  to  determine  the  ques- 
tion of  right,  and  more  will  not  be  given  unless  actual  injury 
be  shown.  But  the  actual  injuries  need  not  always  be  set  forth 
in  the  declaration.  If  the  injury  be  one  from  which  actual 
loss,  suffering  or  mischief  must  necessarily  ensue,  this  the  law 
will  generally  infer,  and  it  need  not  be  specifically  alleged. 
But  that  which  occurs  directly,  yet  not  necessarily  and  as 
a  certain  or  inevitable  consequence,  should,  as  a  general  rule, 


where  no  right  is  involved  beyond  a 
mere  (luestion  of  property — where  there 
is  a  clear  standard  for  the  measure  of 
damages,  and  no  difficulty  in  applying 
it  —  the  measure  of  damages  is  a  ques- 
tion of  law,  and  is  necessarily  under 
the  control  of  the  court."  See  also 
Lcland  v.  Stone,  10  Mass.  462,  per  Jack- 
son, J. ;  Ferrand  v.  Bouchell,  Harper, 
(So.  Car.)  87  ;  Alder  v.  Keighley,  15  M. 
&  AV.  117;  Walker  v.  Smith,  1  Wash. 
C.  C.  152;  Wylie  v.  Smithcrman,  8 
Iredeil,  236 ;  Commonwealth  v.  Sessions 
of  Norfolk,  5  Mass.  437,  per  Parsons,  C.J. 
( /  )  lluckle  V.  Money,  2  Wiis.  205 ; 
Sharp  V.  Price,  2  W.  Bl.  942  ;  Williams 
V.  Currie,  1  C.  B.  841  ;  Cook  v.  Hill,  3 
Sandf.  331  ;  Woodruff  v.  llichardson.  20 
Conn.  238.  In  Huckle  v.  Money,  2  AVils. 
206,  Pratt,  C.  J.,  said:  "  The  law  has 
not  laid  down  what  shall  be  the  measure 
of  damages  in  actions  of  tort ;  the  mea- 
sure is  vague  and  uncertain,  depending 
ujion  a  vast  variety  of  causes,  facts  and 
circumstances ;  torts  or  injuries  which 
may  be  done  by  one  man  to  another 
are  infinite  ;  in  cases  of  criminal  conver- 
sation, Imttery,  imprisonment,  slander, 
malicious  prosecutions,  &c.,  the  state, 
degree,  quality,  trade  or  profession  of 
the  party  injured,  as  well  as  of  the  per- 
son who  did  the  injury,  must  be,  and 
generally  are  considered  by  the  jury  in 
giving  damages ;  the  few  cases  to  be 
found  in  the  books  of  new  trials  for 
torts,  show  that  courts  of  justice  have 
most  commonly  set  their  faces  against 
them.  .It    is    very    dangerous 


for  the  judges  to  intermeddle  in  dam- 
ages for  torts ;  it  must  be  a  glaring  ease 
indeed  of  outrageous  damages  in  a  tort, 
and  which  all  mankind  at  first  blush 
must  think  so,  to  induce  a  court  to 
grant  a  new  trial  for  excessive  dam- 
ages." The  same  rule  is  acted  upon  by 
the  courts  in  actions  for  Ijreach  of  pro- 
mise to  marry.  Clark  r.  Pendleton,  20 
Com.  495  ;  Perkins  u.  Hersey,  1  P.I. 
495.  But  in  all  these  cases,  new  trials 
are  granted  if  the  damages  are  clearly 
excessive.  Chambers  v.  Robinson,  2 
Strange,  691  ;  Price  v.  Severn,  7  Bing. 
316;  Boyd  v.  Brown,  17  Pick.  453; 
McConnell  v.  Hampton,  12  Johns.  234  ; 
Wiggins  V.  Coiiin,  3  Storv,  1  ;  Collins 
V.  The  A.  &.  S.  11.  K.  Co.  12  Barb.  492  ; 
Dublin  V.  Murj)iiv,  3  Sandf.  19.  In 
Sharp  V.  Brice,  2  W.  Bl.  942,  De  Grey, 
C.  J.,  said  :  "  It  has  never  been  laid 
down  that  the  court  will  not  grant  a 
new  trial  for  excessive  damages  in  any 
case  of  tort.  It  was  held  so  long  ago  as 
in  Comb.  357,  that  the  jury  have  not  a 
despotic  ])ower  in  such  actions.  The 
utmost  that  can  be  said  is.  and  very 
truh'  —  that  the  same  rule  does  not 
prevail  upon  questions  of /o>Y,  as  of  con- 
tract. In  contract  the  measure  of  dam- 
ages is  generally  matter  of  account,  and 
the  damages  given  may  be  demonstrated 
to  be  right  or  wrong.  But  in  torts  a 
greater  latitude  is  allowed  to  the  jury, 
and  the  damages  must  be  excessive  and 
outrageous  to  require  or  warrant  a  new 
trial." 


CH.   VII.] 


DAMAGES. 


453 


be  specifically  stated,  and  then,  being  proved,  damages  may 
be  founded  upon  it.  (A:)  Thus,  if  one  who  owes  money  refuses 
to  pay  it,  the  creditor  may  sue  and  declare  himself  damaged, 
without  specifying  in  what  way,  because  the  law  understands 
that  when  one  cannot  get  money  which  is  due  to  him,  he 
must  sustain  loss.  So,  if  in  slander,  the  words  charge  an  in- 
dictable oftence,  or  a  contagious  disease,  or  impute  insolvency 
to  a  merchant,  the  plaintiff  need  not  here  say  in  what  way 
he  is  damaged,  for  the  law  asserts  that  such  slander  as  this 
must  be  injurious.  (/)  But  if  the  words  charged  are  of  other 
matters,  and  the  defamation  mayor  may  not  have  been  inju- 
rious, the  plaintiff  must  now  set  forth  specifically  the  damages 
he  has  sustained,  and  either  prove  them  as  alleged,  specifi- 
cally, or  prove  facts  from  which  the  jury  may  infer  them,  (m) 
These  damages  are  called  special  damages.  They  are  such 
consequences  of  the  injury  as  are  both  actual  and  natural, 
but  not  necessary. 


(k)  1  Chitty's  PI.  332;  Stevens  v. 
Layfoid,  7  N.  H.  360 ;  Furlongs  v.  Pol- 
leys,  30  Maine,  491  ;  Bedel  v.  Powell, 
is'  Barb.  183.  In  Vandersliee  v.  New- 
ton, 4  Comst.  130,  the  action  was  for  a 
breach  of  a  contract  to  tow  the  plain- 
tiflTs  boat.  Ruggles,  J.,  in  delivering  the 
opinion  of  the  court  said  :  "  With  re- 
spect to  the  damages,  the  general  rule 
in  qtiestions  of  this  nature  is,  that  the 
plaintiff  is  entitled  to  recover,  as  a  re- 
compense for  his  injury,  all  the  damages 
whicii  are  the  natural  and  proximate 
consequence  of  the  act  complained  of. 
(2  Greenl.  Ev.  §  256.)  Those  which 
necessarily  result  from  the  injury  arc 
termed  general  damages,  and  may  be 
shown  under  the  general  allegation  of 
damages,  at  the  end  of  the  declaration. 
But  such  damages  as  are  the  natural, 
although  not  the  necessary  result  of  the 
injury,  are  termed  special  damages, 
and  must  be  stated  in  the  declaration, 
to  prevent  a  surprise  upon  tiie  defend- 
ant ;  and  being  so  stated  may  be  re- 
covered." 

(I)  Bacon's  Abr.  Tit.  Slander,  (B); 


1  Stark,  on  Slander,  10.  See  Whitte- 
more  v.  Cutter,  1  Gall.  429  ;  per  Stori/, 
J.,  Sevan  v.  Lappan,  .5  Gush.  104. 

(m)  Bacon's  Abr.  Tit.  Slander,  (C.) 
In  Beach  v.  Ranney,  2  Hill,  309,  it  was 
held  that  such  damages  must  be  pecuni- 
ary, and  that  proof  of  mere  mental  or 
bodily  suffering,  loss  of  society,  or  of 
the  good  opinion  of  neighbors,  would 
not  be  sufficient.  But  it  has  been  held, 
that  a  refusal  to  receive  the  plaintiff  as 
a  visitor,  on  account  of  the  slander,  was 
sufficient  evidence  to  support  an  alle- 
gation of  special  damage.  ^loore  v. 
Meagher,  1  Taunt.  39  :  Williams  v.  Hill, 
19  Wend.  30.5.  So  where  the  plaintiff 
was  refused  civil  treatment  at  a  public 
house;  Olmstead  v.  Miller,  1  Wend. 
506.  In  Bradt  v.  Towslcy,  13  Wend. 
253,  the  plaintiff  having  been  called  a 
prostitute,  brought  her  action  of  slander, 
alleging,  as  special  damage,  loss  of 
health,  and  a  consequent  derangement 
of  business ;  the  defendant  demurred, 
and  there  was  judgment  on  the  demurrer 
for  the  plaintiff.  See  also  Hartley  v. 
Herring,  8  T.  R.  130. 


454 


THE  LAW  OF  CONTRACTS. 


[PABT  II. 


SECTION  V. 

OF  DIRECT,   OR  REMOTE,   CONSEQUENCES. 

Damages  will  not,  in  general,  be  given  for  the  consequences 
of  wrongdoing,  which  are  not  the  natural  consequences,  be- 
cause it  is  only  for  them  that  the  defendant  is  held  liable. 
Thus,  if  he  has  beaten  the  plaintiff',  he  must  compensate  for 
all  the  evils  which  naturally  flow  from  the  beating,  whatever 
they  may  be;  but  if  a  slight  bruise  has  been  so  ill-treated  by 
a  surgeon,  that  extensive  inflammation  and  gangrene  have 
supervened  and  a  limb  is  lost,  the  defendant  is  not  answer- 
able for  this.  Nor,  on  the  same  principle,  ought  he  to  be 
held  responsible  if  the  same  consequences  follow  from  a 
slight  bruise,  by  reason  of  the  peculiarly  unhealthy  condition 
of  the  plaintiff,  if  the  defendant  had  no  means  of  knowing 
this.  Still,  it  is  sometimes  difficult  to  draw  the  line  between 
what  are  and  what  are  not  the  natural  consequences  of  an 
injury.  Always,  however,  if  the  consequences  of  the  act 
complained  of  have  been  increased  and  exaggerated  by  the 
act,  or  the  omission  to  act,  of  the  plaintiff",  this  addition  must 
be  carefully  discriminated  from  those  natural  consequences 
of  the  act  of  the  defendant,  for  which  alone  he  is  responsi- 
ble. If  the  plaintiff"  chooses  to  make  his  loss  greater  than  it 
need  have  been,  he  cannot  thereby  make  his  claim  on  the 
defendant  any  greater,  (n) 


(n)  Miller  v.  Mariner's  Church,  7 
Grccnl.  51  ;  Davis  v.  Fish,  1  Greene, 
(Iowa)  40G ;  Dowin  i\  Potter,  5  Denio, 
30G.  In  Loker  v.  Damon,  17  Pick.  284, 
the  action  was  trespass  for  removing  a 
few  rods  of  fence,  and  it  was  held  that 
the  proper  measure  of  damages  was  the 
cost  of  repairing  it,  and  not  the  injury 
to  tlic  crop  of  the  subsequent  year, 
arising  from  the  defect  in  tlic  fence,  it 
appearing  tliat  sucli  defect  was  known 
to  the  plaintiff.  Shciw,  J.  C,  said :  "  In 
aFsessing  damages,  the  direct  and  im- 
mediate consequences  of  the  injurious 
act  are  to  be  regarded,  and  not  remote, 
speculative,  and  contingent  consequen- 
ces, wliicli  the  party  injured  miglit  easily 
have  avoided  by  his  own  act.     (suppose 


a  man  should  enter  his  neighbor's  field 
unlawfully,  and  leave  the  gate  open ;  if 
before  the  owner  knows  it,  cattle  enter 
and  destroy  the  crop,  the  trespasser  is 
responsible.  But  if  tlie  owner  .sees  the 
gate  open  and  passes  it  frequently,  and 
willfully,  and  obstinately;  or  through 
gross  negligence,  leaves  it  open  all 
summer,  and  cattle  get  in,  it  is  his  own 
folly.  So  if  one  throw  a  stone  and 
break  a  window,  the  cost  of  rcjiairing 
the  window  is  the  ordinary  measure  of 
damage.  But  if  the  owner  suffers  the 
window  to  remain  without  roi)airing  a 
great  length  of  time  after  notice  of  the 
fact,  and  his  furniture,  or  i)ictures,  or 
other  valuable  articles,  sustain  damage, 
or  the  rain  beats  in  and  rots  the  window, 


CH.   VII.]  DAMAGES.  455 

It  is  an  ancient  and  universal  rule,  resting  upon  obvious 
reason  and  justice,  that  a  wrongdoer  shall  be  held  responsi- 
ble only  for  the  proximate,  and  not  for  the  remote  conse- 
quences of  his  actions.  One  does  not  pay  money  which  is 
due ;  the  creditor,  in  his  reliance  on  this  payment,  has  made 
no  other  arrangements ;  he  is  therefore  unable  to  meet  an  en- 
gagement of  his  own ;  his  credit  suffers,  his  insolvency  en- 
sues, and  he  is  ruined.  All  this  is  distinctly  traceable  to  the 
non-payment  of  his  debt  by  the  defendant;  yet  he  shall  be 
held  liable  only  for  its  amount  and  interest ;  causa  proxima, 
non  re7?iota,  spectatur;  and  the  proximate  cause  of  the 
plaintifPs  insolvency  was  his  non-payment  of  the  debt  he 
himself  owed.  The  cause  of  this  cause  was  the  defendant's 
failure  to  pay  his  debt.  But  this  was  a  remote  cause,  being 
thrown  back  by  the  interposition  of  the  proximate  cause,  (o) 
In  such  a  case  as  this  the  reason  of  the  rule  is  plain  enough. 
If  every  one  were  answerable  for  all  the  consequences  of  all 
his  acts,  no  one  could  tell  what  were  his  liabilities  at  any 
moment.  The  utmost  caution  would  not  prevent  one  who 
sustained  any  social  relations  from  endangering  all  his  pro- 
perty every  day.  And  as  very  few  causes  continue  to  operate 
long  without  being  combined  and  complicated  with  others, 
it  would  soon  become  impossible  to  say  which  of  the  many 
persons  who  may  have  contributed  to  a  distant  result  should 
be  held  responsible  for  it,  or  in  what  proportions  all  should  be 
held. 

We  must  then  stop  somewhere  ;  but  the  question  where 
we  shall  stop  is  sometimes  one  of  great  uncertainty.  Not 
only  is  there  no  definite  rule,  or  clear  and  precise  principle 
given  by  which  we  may  measure  the  nearness  or  remote- 
ness of  effects  in  this  respect ;  but  the  highest  judicial  autho- 
rities are  so  directly  antagonistic,  that  they  scarcely  seem  as 
guides  to  lead  us  to  a  conclusion.     For  example,  the  Court 

this  damage  would  be  too  remote."  But  G21  ;  Watts  v.  Freser,  7  Id.  369  ;  Cal- 

see  lleaney   v.  Ileeney,  2  Denio.  62.5  ;  craft  v.  Ilarborough,  4   C.   &  P.  499. 

Green  i'.  Mann,  11  Illinois,  613.     So  in  But  the  provocation  must  have  been  so 

actions  for  personal  injuries,  evidence  is  recent  as  to  induce  a  presumption  that 

admissible  in  mitigation  of  damages,  to  the  injury  was  inflicted  under  the  influ- 

show  that  the  plaintilf  provoked  the  in-  ence  of  it.     Lee  v.  Woolsey,  19  Johns, 

jury,  or  otherwise  brought  it  upon  him-  319. 

self.    Frascr  v.  Berkeley,  7  C.  &.  P.  (o)  Archer  v.  Williams,  2  C.  &  K.  26. 


456  THE   LAW   OF   CONTRACTS.  [PART   II. 

of  King's  Bench,  and  the  Supreme  Court  of  the  United  States 
decide  this  question  as  it  is  presented  to  them  in  circumstances 
of  almost  exact  similarity,  in  precisely  opposite  ways,  (p) 
We  have  been  disposed  to  think  that  there  is  a  principle, 
derivable  on  the  one  hand  from  the  general  reason  and  jus- 
tice of  the  question,  and,  on  the  other  hand,  applicable  as  a 
test,  in  many  cases,  and,  perhaps,  useful,  if  not  decisive  in  all. 
It  is  that  every  defendant  shall  be  held  liable  for  all  of  these 
consequences  which  might  have  been  foreseen  and  expected 
as  the  results  of  his  conduct,  but  not  for  those  which  he  could 
not  have  foreseen,  and  was  therefore  under  no  moral  obliga- 
tion to  take  into  his  consideration,  {q)  There  seems  little 
reason  to  object  to  this  rule  in  cases  where  the  act  complained 
of  was  voluntary  and  intentional.  And  if  it  be  said  that 
where  the  act  is  wholly  involuntary,  as  where  the  defendant's 
ship  runs  down  another  at  anchor,  in  a  dark  night,  there  is 
no  reason  for  asking  what  consequences  he  should  have  ex- 
pected, when  he  had  not  indeed  the  least  thought  of  doing  the 
thing  itself,  it  may  be  answered  that  even  here  it  will  gener- 
ally be  found,  that  the  consequences  which  at  the  time  would 
have  been  foreseen,  by  a  person  of  intelligence  and  deliberate 
observation,  are  just  those  which  are  so  far  the  direct,  imme- 
diate, and  natural  effects  of  the  act,  that  the  doer  of  the  act 

{p)  An  insured  vefssel,  having  sunk  (7)  Greenland  v.  Chaplain,  5  Exch. 
another  vessel,  by  accidental  collision,  243.  In  Rigby  v.  Hewitt,  5  Exch.  240, 
was  sentenced  by  a  foreign  Admiralty  an  action  on  the  case  was  brought  for 
Court,  (acting  on  a  peculiar  local  law)  an  injury  to  the  plaintiff,  from  the  neg- 
to  pay  one  half  the  value  of  the  lost  ligent  driving  of  the  defendant's  omni- 
vcsscl.  It  was  held,  in  Peters  v.  The  bus.  Pollock,  C.  B.,  in  giving  the  opin- 
Warren  Ins.  Co.,  3  Sumner,  389,  S.  C.  ion  of  the  court,  said  :  "I  am  disposed 
14  Peters,  99,  that  a  peril  of  the  sea  was  not  quite  to  acquiesce  to  the  full  extent 
the  proximate  cause  of  the  loss  of  the  in  the  proposition,  that  a  person  is  re- 
sum  thus  paid,  and  tliat  the  insurers  sponsible  for  all  the  possible  consequen- 
were  liable  for  it.  The  very  same  point  ces  of  his  negligence.  I  wish  to  guard 
arose  about  the  same  time  in  the  Court  against  laying  down  the  proposition  so 
of  King's  Bench,  and  received  a  directly  universally ;  but  of  this  I  am  quite  clear, 
opposite  adjudication.  l)e  Vaux  r.  Sal-  that  every  person  who  does  a  wrong,  is 
vador,  4  Ad.  &  Ellis,  420.  And  on  this  at  least  responsible  for  all  the  mischiev- 
question  we  cnnnot  but  prefer  the  rea-  ous  consequences  that  may  reasonably 
sons  and  conclusions  of  the  English  be  expected  to  result,  under  ordinary 
court.  The  maxim,  causa  proxima,  non  circumstances,  from  sudi  misconduct." 
rcinota,  spectdtur,  may  be  ajiplicd  with  This  rule  api)cars  where  contracts  are 
more  strictness  to  contracts  of  insu-  broken,  without  fraud  or  malice.  Poth- 
rance,  than  in  questions  respecting  ier  on  Obligations,  (by  Evans,)  Part.  1, 
damages,  but  the  difficulty  and  unccr-  c.  2,  art.  Ill,  p.  9.  Sec  Williams  v. 
tainty  in  its  application  arc  equally  Barton,  B.  La.  410. 
great  in  both  cases. 


en.  VII.] 


DAMAGES. 


457 


ought,  on  the  general  principles  of  common  justice,  to  be  held 
responsible  for  them.  But  it  is  dilTicult,  and  perhaps  impos- 
sible, to  lay  down  a  definite  rule,  which  shall  have  great  prac- 
tical value  or  efficacy  in  determining  for  what  consequences 
of  an  injury  a  wrongdoer  is  to  be  held  responsible,  (r) 


(r)  In  Harrison  v.  Berkley,  1  Strobh. 
548,  ][\irdlaii;  J.,  said:  "Every  in- 
cident will,  when  carefully  examined, 
be  found  to  be  the  result  of  combined 
causes,  and  to  be  itself  one  of  various 
causes  which  jiroduce  other  events.  Ac- 
cident or  dcsiijii  may  disturb  the  or- 
dinary action  of  causes,  and  produce 
unlooked  forrcsults.  It  is  easy  to  imafrine 
some  act  of  trivial  misconduct  or  slight 
negligence,  which  shall  do  no  direct 
harm,  but  set  in  motion  some  second 
agent  that  shall  move  a  third,  and  so  on 
until  the  most  disastrous  consequences 
shall  ensue.  Tiie  first  wrongdoer,  un- 
fortunate rather  tin\a  seriously  blame- 
able,  cannot  be  made  answerable  for  all 
these  consequences.  He  shall  not  answer 
for  those  which  the  party  grieved  has 
contributed  by  his  own  blamablc  neg- 
ligence or  wrong  to  produce,  or  for  any 
which  sucli  party,  by  proper  diligence, 
might  have  prevented.  (Conn.  Dig. 
action  on  the  case.  134;  11  East,  60; 
2  Taunt.  314;  7  Pick.  284.)  But  this 
is  a  very  insufficient  restriction ;  outside 
of  it  would  often  be  found  a  long  chain 
of  consequence  upon  consequence.  Only 
the  proximate  consequence  shall  be 
answered  for.  (2  Grcenleaf's  Ev.  210, 
and  cases  there  cited.)  The  difficulty  is 
to  determine  what  shall  come  within 
this  designation.  The  next  consequence 
only  is  not  meant,  whether  we  intend 
thereby  the  direct  and  immediate  result 
of  the  injurious  act,  or  the  first  con- 
sequence of  that  result.  What  either 
of  these  would  be  pronounced  to  be, 
would  often  depend  upon  the  power  of 
the  microscope  with  which  we  should 
regard  the  affair."  The  general  character 
of  the  adjudications  upon  the  subject 
may  be  gathered  from  the  following 
cases.  In  Astley  v.  Harrison,  1  Esp. 
48,  Peake,  194,  a  performer  employed 
by  the  plaintiff  was  libelled  by  tiie  de- 
fendant, and  in  consequence  refused  to 
appear  upon  the  stage.  It  was  alleged 
as  special  damage  that  the  oratorios  had 
been  more  thinly  attended  on  that  ac- 
count. It  was  iicld  that  the  injury  was 
too  remote,  and,  per  Lord  Kenyan,  "  If 
this  action  is  to  be  maintained  I  know 


not  to  what  extent  the  rule  may  be  car- 
ried. For  aught  I  can  see  to  the  con- 
trary, it  may  equally  be  supported 
against  every  man  who  circulates  the 
glass  too  freely,  and  intoxicates  an  actor, 
by  which  he  is  rendered  incapable  of 
performing  his  part  on  the  stage.  If  any 
injury  has  happened,  it  was  occasioned 
entirely  by  the  vain  fears  or  caprice  of 
the  actress."  See  also  ftloore  v.  Adam, 
2  Chitty,  198;  Boyle  v.  Brandon,  13  M. 
&  W.  728 ;  Lincoln  v.  The  S.  &  S.  K. 
Iv.  Co.  23  Wend.  425  ;  Donnell  v.  Jones, 
13  Ala.  490.  It  was  held  that  an  action 
for  slanderous  words  not  in  themselves 
actionable  could  not  be  maintained  on 
the  ground  that  injury  resulted  from 
the  repetition  of  these  words  by  a  third 
person.  Ward  v.  Weeks,  7  Bing.  211  ; 
Stevens  v.  Hartwell,  11  Mete.  542.  In 
Vicars  v.  Wilcocks,  8  East,  1,  the  de- 
fendant asserted  that  his  cordage  had 
been  cut  by  the  plaintiff',  in  consequence 
of  which  the  latter,  who  was  hired  for  a 
time  certain,  was  discharged  from  em- 
ployment by  his  master.  It  was  held 
that  the  defendant  was  not  liable  for 
damages  caused  by  the  discharge,  and, 
per  Lord  Ellenborowjh,  "  The  special 
damage  must  be  the  legal  and  natural 
consecjuenee  of  the  words  spoken,  other- 
wise it  did  not  sustain  the  declaration  : 
and  here  it  was  an  illegal  consequence ; 
a  mere  wrongful  act  of  the  master :  for 
which  the  defendant  was  no  more 
answerable,  then  if,  in  consequence  of 
the  words,  other  persons  had  afterwards 
assembled  and  seized  the  plaintiff"  and 
thrown  him  into  a  liorse-]jond,  by  way 
of  punishment  for  his  supposed  trans- 
gression. And  his  Lordship  asked 
whether  any  case  could  be  mentioned  of 
an  action  of  this  sort  sustained  by  the 
tortious  act  of  a  third  person."  See  also 
Morris  v.  Langdale,  2  B.  &  P.  284,  289  ; 
Cram  v.  Petrie,  6  Hill,  522  ;  Kendall  v. 
Stone,  1  Selden,  14.  But  the  decision 
in  Vicars  v.  Wilcocks  has  been  ques- 
tioned, in  1  Stark.  Slander,  205-207  ; 
Green  v.  Button,  2  C.  M.  &  R.  707; 
Cop[)in  V.  Brathwaite,  8  Jur.  876,  per 
Parke,  B. ;  and  in  Kcene  v.  Dilke,  4 
Exeh.  388,  it  was  held  that,  "  if  a  sheriff 


VOL.  II. 


39 


458 


THE   LAW   OF   CONTRACTS. 


[part    II. 


Both  in  England  and  America,  it  is  generally  held  that 
profits  are  not  to  be  included  in  the  injury  for  which  compen- 


wrongfuUy  seizes  goods  wiiieli  are  after- 
wards taken  from  liiin  by  another  wrong- 
doer, the  owner  of  the  goods  may,  in  an 
action  against  the  sheriff,  recover  as 
special  damage  the  amount  necessarily 
paid  to  the  other  wrongdoer,  in  order  to 
get  back  the  goods."  But  Ahlerson,  B., 
distinguished  tlie  case  from  Vicars  v. 
Wilcocks,  by  remarking  that  "  in  Vi- 
cars V.  Wilcocks  there  was  no  cause  of 
action  without  special  damage.  Here  it 
is  only  a  question  as  to  the.  amount  of 
damages."  See  also  Moody  v.  Baker, 
5  Cowen,  351.  In  actions  for  a  breach 
of  warranty  this  question  has  arisen.  In 
Borradaile  r.  Brunton,  8  Taunt.  .'iSS,  2 
J.  B.  Moore,  the  defendant  sold  the 
plaintiff  a  chain  cable,  warranted  to  last  ■ 
two  years,  as  a  substitute  for  a  rope  cable 
of  sixteen  inches.  Within  two  years  the 
cable  broke  and  was  lost,  together  with 
the  anchor  attached  to  it.  It  was  held, 
in  an  action  for  breach  of  the  warranty, 
that  the  value  of  both  the  cable  and  an- 
chor could  be  recovered.  In  Hargous 
V.  Ablon,  5  Hill,  472,  the  defendant  sold 
cloth,  warranting  the  invoice  to  be  cor- 
rect :  it  j)roved  to  be  much  overstated, 
and  in  consequence  the  duties  on  the 
cloth,  when  exported  to  a  foreign  mar- 
ket, were  overpaid.  It  was  held,  in  an 
action  for  breach  of  the  warranty,  that 
the  excess  of  duties  could  not  be  re- 
covered as  damages.  Coicen,  J.,  said, 
"The  only  question  before  us,  therefore, 
relates  to  the  amount  of  damages  re- 
coverable. Tiie  general  rule  would  stop 
with  awarding  to  the  plaintiff  so  much 
only  as  would  make  good  the  difference 
between  the  ])rice  paid  and  the  value 
which  tlic  article  full  short  in  con- 
sequence of  tlic  warranty  Ijcing  broken. 
A  warranty  or  promise  concerning  a 
thing  being  general,  that  is  to  say,  not 
having  reference  to  any  purpose  for 
which  it  is  to  be  used  out  of  the  ordinary 
course,  the  law  does  not  go  beyond  the 
general  market  in  searcli  for  an  indem- 
nity against  its  breacli.  CSee  Blanchard 
V.  Ely,  21  Wend.  342.  347,  348;  Voor- 
hccs  V.  Earl,  2  Hill,  288,  291,  a.)  The 
exceptions  wfll  all  be  found  to  lie  in  the 
s[>ecial  nature  of  the  promise  or  warranty 
itself,  express  or  inq)lied.  Thus,  in  tlic 
case  of  Borradaile  v.  Brunton,  (2  J.  B. 
Moore,  82)  mentioned  at  tiie  bar  and 
mainly  relied  on  for  the  plaintiff,  the 


warranty  was,  that  a  cable  should  last 
two  years.  It  failed  before,  in  con- 
sequence of  which  the  anchor  was  lost. 
The  plaintiff  was  allowed  to  recover,  not 
only  for  the  cable,  but  the  anchor;  the 
court  saying  the  loss  of  the  last  was  con- 
sccjucntial  to  the  insufficiency  of  the 
cable.  Where  goods  are  purchased  for 
a  particular  market,  and  that  known  to 
both  parties,  the  damages  have  been 
governed  by  the  price  of  that  market. 
(Bridge  v.  Wain,  1  Stark.  Hep.  410.) 
]3ut  where  the  waiTanty  is  general,  an 
accidental  damage  even  in  tlie  vendee's 
own  affairs  is  not  regarded."  See  also 
Langridge  v.  Levy,  2  M.  &  W.  519,  4 
Id.  337.  In  an  action  by  a  lessee  against 
his  lessor,  for  refusing  to  allow  the  lessee 
to  enter  upon  the  demised  premises,  the 
plaintiff  is  entitled  to  recover  the  dam- 
age sustained  by  him  in  his  removal  to 
the  premises.  Driggs  v.  Dwight,  17 
Wend.  71;  Giles  v.  O'Toole,  4  Barb. 
2G1;  Johnson  v.  Arnold,  2  Cush.  46; 
Lawrence  v.  Wardwell,  6  Barb.  423. 
Although  the  injury  may  have  been  in- 
flicted by  the  immediate  agency  of  a 
third  person,  tlie  wrongdoer  will  be 
liable  if  his  wrongful  act  naturally  led 
to  the  injury;  as  where  the  defendant 
descended  in  a  balloon  into  the  plaintiff's 
garden,  and  drew  to  his  assistance  a 
crowd,  who  trod  down  the  vegetables 
and  flowers,  the  defendant  was  held 
liable  for  these  injuries.  Guille  ?■.  Swan, 
19  Johns.  381  ;  Scott  v.  Shepherd,  2 
W.  Bl.  892  ;  Vandenburgh  v.  Swax,  4 
Denio,  464  ;  so  also  if  caused  by  the 
act  of  a  horse  ;  Gilbert  v.  Richardson,  5 
C.  B.  502.  See  also  Lyncli  v.  Nurdin, 
1  Q.  B.  29.  A  lapse  of  time  may  inter- 
vene between  the  wrongful  act  and  the 
injury;  Dickinson  v.  Bayle,  17  Pick. 
78.  In  Tarleton  v.  McGawley,  I'eakc, 
205,  the  defendant  was  held  liable  for 
flring  cannon  at  the  natives  on  the  coast 
of  Africa,  to  prevent  their  trading  with 
the  plaintiff.  Firing  near  the  plaintiff's 
decoy  pond,  to  frighten  away  tlie  wild 
fowl,  was  licld  actionable,  in  Kecblc  v. 
Ilickeringall,  11  East,  574,  note.  In 
Watson  V.  A.  N.  &  B.  Railway,  3  E.  L. 
&  E(|.  497, 15  Jur.  448,  tiie  plaintiff  sent 
a  plan  and  model  to  a  committee  who 
had  olVercd  a  prize  for  the  best  one  of 
the  kind.  By  tlie  negligence  of  the 
common-carrier    it    did  not  arrive  in 


en.  VII.] 


DAMAGES. 


459 


sation  is  to  be  made.  Yet  tliese  would  seem  to  be  precisely 
those  consequences  which  the  owner  of  merchandise  did 
expect,  and  the  loss  of  them  would  be  that  which  one  who 
interfered  with  the  owner,  as  by  unlawful  capture,  must 
have  contemplated  as  certain.  But  the  answer  is,  that  profits 
are  excluded,  not  because  they  are  in  themselves  remote,  but 
because  they  depend  \yholly  upon  contingencies,  which  are 
so  many,  so  various,  and  so  uncertain  ;  as  the  arrival  of  goods, 
the  time,  place,  and  condition  of  arrival,  the  state  of  the  market 
at  that  moment,  and  the  like,  that  it  would  be  impossible  to 
arrive  at  any  definite  determination  of  the  actual  loss,  by  any 
trustworthy  method.  And  the  future  profits  of  a  business 
which  has  been  interrupted  by  the  defendant,  are  open  also  to 
the  objection  of  remoteness  as  well  as  uncertainty,  (s)     But 


season  to  be  presented.  It  -was  held, 
that  the  chance  of  obtaining  the  prize 
could  not  be  <^onsidci'ed  in  assessing  the 
damages.  Where  tlie  phaintiff's  horses 
escaped  into  the  defendant's  field,  in  con- 
sequence of  a  defect  in  his  fence,  and 
were  there  killed  by  the  falling  of  a 
haystack,  which  it  was  alleged  was  kept 
in  an  improper  and  dangerous  manner, 
the  defendant  was  held  liable  for  the 
loss  of  the  horses.  PowcH  v.  Salisbury, 
2  You.  &  Jerv.  391.  The  expense  of 
searching  for  property  wrongfully  taken 
has  been  held  recoverable  as  special 
damage,  in  an  action  on  the  case  for  the 
taking  of  the  property.  Bennett  v. 
Lockwood,  20  Wend.  223. 

Is)  The  probable  profits  of  a  voj'- 
age  have  not  been  allowed  as  damages, 
when  it  has  been  broken  up  by  the  ille- 
gal capture  of  the  vessel, — The  schooner 
Lively,  1  Gallison,315,  325  ;  The  Amia- 
ble Nancy,  3  Wheat.  546, 560 ;  La  Ami- 
stad  de  Eues,  5  Wheat.  385  ;  or  by  a 
collision  occasioned  by  the  fault  of  the 
defendant ;  Fitch  v.  Livingston,  4  Sandf. 
492,  514  ;  Cummins  v.  Presley,  4  Har- 
rington, 315;  Steamboat  r.  "Whilldin, 
4  Id.  233 ;  Finch  v.  Brown,  13  Wend. 
601  ;  or  by  illegal  attachment  of  the 
ship  ;  Boyd  v.  Brown,  17  Pick.  453. 
In  Smith  i-.  Condry,  1  How.  28,  35, 
Taneij,  C.  J-,  said :  "  It  has  been  repeat- 
edly decided,  in  cases  of  insurance,  that 
the  insured  cannot  recover  for  the  loss 
of  probable  profits  at  the  port  of  desti- 
nation, and  that  the  value  of  the  goods 
at  the  place  of  shipment  is  the  measure 


of  compensation.  There  can  be  no 
good  reason  for  establishing  a  different 
rule  in  cases  of  loss  by  collision.  It  is 
the  actual  damage  sustained  by  the  party, 
at  the  time  and  place  of  the  injury,  that 
is  the  measure  of  damages."  But  see 
Wilson  V.  Y.  N.  &  B.  R.  Co.  18  Eng.  L. 
&  Eq.  557.  But  in  The  Narragansctt,  1 
Blatchford,  211,  (a  case  in  admiralty,) 
the  value  of  the  services  of  the  vessel, 
while  undergoing  necessary  repairs  for 
injuries  received  by  collision,  was  allow- 
ed as  a  part  of  the  damages  sustained 
by  her  owners.  It  was  held,  in  an  ac- 
tion by  the  builder  of  a  steamboat  for 
its  price,  that  the  owner  could  not  re- 
coup the  amount  of  profits  which  would 
probably  have  arisen  from  trips,  which 
were  prevented  by  defects  in  the  con- 
struction of  the  boat.  Blanchard  v.  Ely, 
21  Wend.  342.  See  Taylor  v.  Ma- 
guire,  13  Missouri,  517.  In  an  action 
against  a  lessor,  for  refusing  to  allow 
the  lessee  to  enter  upon  the  demised 
premises,  the  profits  which  the  lessee 
might  have  made  in  his  business,  had 
he  occupied  the  premises,  cannot  lie  re- 
covered as  damages.  Giles  v.  O'Toole, 
4  Barb.  261.  In  an  action  for  the 
breach  of  a  contract  to  make  and  deliv- 
er certain  machinery  within  a  certain 
time,  the  profits  which  might  have  ac- 
crued from  the  manufacture  of  an  arti- 
cle with  the  machinery,  had  the  con- 
tract not  been  broken,  can  not  be 
considered  in  estimating  the  profits. 
Freeman  v.  Clute,  3  Barb.  424.  But 
in  Waters  v.  Towers,  20  Eng.  L.  &  Eq 


460 


THE   LAW   OF   CONTRACTS. 


[part  ir. 


where  profits  are  not  liable  to  either  of  these  objections,  there 
they  should  be  admitted,  as  giving  a  right  to  compensation 
in  damages.  This  admission  seems,  however,  in  general,  to 
be  limited  to  eases  in  which  the  profits  are  the  immediate 
fruit  of  the  contract,  and  are  independent  of  any  collateral 
engagement  or  enterprise,  entered  into  in  expectation  of  the 
performance  of  the  principal  contract.,  (t)     In  some  instances. 


410,  where  the  action  was  for  the  non-ful- 
filment of  a  contract  to  furnish  machin- 
ery in  a  reasonable  time,  it  was  held  that 
the  jury  might  assess  damages  for  loss  of 
profits  to  be  derived  from  contracts  with 
third  parties,  if  the  jury  believed  that 
such  profits  would  have  been  obtained. 
But  the  loss  of  profits  was  set  forth  in  the 
declaration.  A  vendee  of  property  cannot 
recover  against  the  vendor,  in  an  action 
for  a  bi-cachof  the  contract  to  sell,  dam- 
ages on  account  of  an  advantageous 
contract  of  resale,  made  by  the  vendee 
with  a  third  person.  Lawrence  v.  Ward- 
well,  6  Barb.  42-3.  But  evidence  of  the 
amount  of  probable  profits,  has  some- 
times been  admitted,  not  as  a  measure 
of  damages,  but  to  aid  the  jury  in  esti- 
mating the  loss.  McNeil  v.  Reed,  9 
Bing.  68;  Ingram  v.  Lawson,  6  Bing. 
N.  C.  21 2  ;  Donnell  v.  Jones,  1 7  Ala.  G89. 
{t)  Thus  where  a  party  refuses  to  fulfil 
a  contract,  the  other  pnrty  may  recover  as 
damages  the  difference  between  the  sum 
he  was  to  be  paid  for  performing  it  and 
what  it  would  have  cost  him  to  complete 
it.  In  Mastcrton  v.  Mayor  of  Brooklyn, 
7  Hill,  61,  the  plaintiffs  agreed  to  furnish 
the  marble  necessary  for  a  public  build- 
ing, at  a  specified  sum.  The  defendants 
suspended  operations,  and  the  plaintiffs 
were  thereby  prevented  from  furnishing 
the  full  amount.  An  action  of  cove- 
nant was  brought.  Nilson,  C.  J.,  said  : 
"  When  the  books  and  cases  speak  of 
the  profits  anticipated  from  a  good  bar- 
gain, as  matters  too  remote  and  uncer- 
tain to  be  taken  into  the  account  in 
ascertaining  the  measure  of  damages, 
tliey  usually  have  relation  to  dependent 
and  collateral  engagements,  entered  into 
on  the  faith  and  in  expectation  of  the 
performnncc  of  tlic  principal  contract. 
The  performance  or  non-performance 
of  the  hitter  may  and  often  doubtless 
does  exert  a  material  influence  upon  the 
collateral  enterprises  of  the  party ;  and 
the  same  may  be  said  as  to  his  general 
affairs  and  business  transactions.    But 


the  influence  is  altogether  too  remote  and 
subtile  to  be  reached  by  legal  proof  or 
judicial  investigation.  But  profits  or 
advantages  which  are  the  direct  and  im- 
mediate fruits  of  the  contract  entered 
into  between  the  parties,  stand  upon  a 
different  footing.  These  are  part  and 
parcel  of  the  contract  itself,  entering 
into  and  constituting  a  portion  of  its 
very  elements ;  something  stipulated  for, 
the  right  to  the  enjoyment  of  which  is 
just  as  clear  and  plain  as  to  the  fulfil- 
ment of  any  other  stipulation.  They 
are  presumed  to  have  been  taken  into 
consideration  and  deliberated  upon  be- 
fore the  contract  was  made,  and  formed 
perhaps  the  only  inducement  to  the 
arrangement The  con- 
tract here  is  for  the  delivery  of  marble 
wrought  in  a  particular  manner,  so  as  to 
be  fitted  for  use  in  the  erection  of  a  cer- 
tain building."  The  plaintiffs  claim  is 
substantially  one  for  not  accepting 
goods  bargained  and  sold ;  as  much 
as  if  the  subject-matter  of  the  contract 
had  been  bricks,  rough  stone,  or  any 
other  article  of  commerce  used  in  the 
process  of  building.  The  only  difficulty 
or  embarrassment  in  applying  the  gen- 
eral rule,  grows  out  of  the  fact  that  the 
article  in  question  does  not  appear  to 
have  any  well-ascertained  market  value. 
But  this  cannot  change  the  principle 
which  must  govern,  but  only  the  mode 
of  ascertaining  the  actual  value  of 
the  articles,  or  rather  the  cost  to  the 
party  producing  it.  Wliere  the  article 
has  no  market  value,  an  investigation 
into  the  constituent  elements  of  the  cost 
to  tlic  party  who  has  contracted  to  fur- 
nish it,  becomes  necessary  ;  and  tliat 
compared  with  tlie  contract  ])ricc  will 
afford  tlic  measure  of  damages."  See 
Fox  v.  Harding,  7  Cush.  .-JlG.  The  N. 
Y.  &  H.  K.  Co.  V.  Story,  6  Barb.  419; 
Lawrence  r.  Wardwcll,  6  Id.  24.3  ;  Sea- 
ton  V.  The  Second  Jlunicipality,  3  La. 
Ann.  K.  45.  The  principle  laid  down 
in  Mastcrton  u.  Mayor  of  Brooklyn,  was 


en.  VII.] 


DAMAGES. 


461 


the  courts  have  gone  so  far,  in  effect,  as  to  allow,  as  dam- 
ages, the  amount  of  the  profits  which  would  probably  have 
arisen  from  contracts  that  depended  upon  the  performance  of 
the  principal  contract.  (z<) 

The  general  principle  as  to  remoteness  has  been  applied 
to  cases  where  sureties  were  put  to  extraordinary  loss  and 
inconvenience,  on  account  of  the  obligations  of  their  surety- 
ship ;  and  it  is  held  that  they  can  recover  only  what  they 
have  paid,  with  interest,  and  necessary  expenses,  (v)  As  a 
general  rule,  a  surety  for  the  payment  of  money  cannot  sue 
his  principal  until  he  pays  the  debt,  (iv)  And  if  there  be  no 
express  contract  between  the  principal  and  surety,  it  would 
seem  that  the  only  remedy  for  the  latter  is  assumpsit  for 
money  paid,  in  which  only  the    money  actually  paid,  with 


approved  in  the  Supreme  Court  of  the 
Uuited  States,  iu  P.  W.  &  B.  R.  II.  Co.  v. 
Story,  13  Howard,  307.  Curlis,  J.,  in 
dcHvering  the  opinion  of  the  court  said  : 
"  Actual  damages  clearly  include  the 
direct  and  actual  loss  which  the  plaintiff 
sustains  propter  rem  ipsam  non  hahitam. 
And  in  case  of  a  contract  like  this,  that 
loss  is,  among  other  things,  the  differ- 
ence between  the  cost  of  doing  the 
work  and  the  price  to  be  paid  for  it. 
This  difference  is  the  inducement  and 
real  consideration  which  causes  the  con- 
tractor to  enter  into  the  contract.  For 
this  he  spends  his  time,  exerts  his  skill, 
uses  his  capital,  and  assumes  the  risks 
which  attend  the  enterprise.  And  to  de- 
prive him  of  it  when  the  other  party  has 
broken  the  contract,  and  unlawfully  put 
an  end  to  the  work,  would  be  unjust. 
There  is  no  rule  of  law  which  requires 
us  to  inflict  this  injustice.  Wherever 
profits  are  spoken  of  as  not  a  subject  of 
damages,  it  will  be  found  tliat  some- 
thing contingent  upon  future  bargains, 
or  speculations,  or  states  of  market,  are 
referred  to,  and  not  the  difference  be- 
tween the  agreed  price  of  something  con- 
tracted for  and  its  ascertainable  value, 
or  cost.  See  IMasterton  v.  INIayor  of 
Brooklyn,  7  Hill,  61,  and  cases  there  re- 
ferred to.  We  hold  it  to  be  a  clear  rule, 
that  the  gain  or  profit  of  which  the  con- 
tractor was  deprived,  by  the  I'cfusal  of 
the  company  to  allow  him  to  proceed 
with  and  complete  the  work,  was  a 
proper  subject  of  damages." 

[u)  In  Clifford  v.  Richardson.  IS  Ver- 
mont, C20,  the  defendant  put  machinery 

39* 


into  the  plaintiff's  mill  in  an  unskillful 
manner,  whereby  he  lost  the  use  and 
profit  of  the  mill  for  a  long  space  of 
time,  and  was  put  to  great  expense  in 
repairingthe  machinery.  It  was  held  that 
both  the  loss  of  the  use  of  the  mill,  and 
the  expense  of  repairs,  were  to  be  com- 
pensated for  in  damages.  Sec  Green  v. 
Mann,  llIllinois,613;  White i'.Moseley, 
8  Pick.  356.  In  Thompson  v.  Shattuck,  2 
Mctc.  615,  the  defendant  had  covenant- 
ed to  keep  in  repair  half  of  the  plaintiff's 
mill-dam  ;  it  was  held  that  a  loss  of 
profits  occasioned  by  a  delay  in  repair- 
ing could  not  be  recovered,  as  the  plaintiff 
might  have  made  the  repairs  immediately, 
at  the  defendant's  expense.  But  see  Blan- 
chard  v.  Ely,  21  Wend.  342,  supra,  n.  (s.) 

(i-)  In  Hayden  v.  Cabot,  17  Mass.  169, 
the  action  was  assumpsit,  by  a  surety 
against  his  principal,  on  a  written  pro- 
mise of  indemnity.  Parker,  C.  J.,  said, 
"  The  common  construction  of  such  a 
contract  is,  that  if  the  surety  is  obliged 
to  pay  the  bond,  by  suit  or  otherwise, 
the  principal  shall  repay  him  the  sum 
he  has  been  obliged  to  advance,  together 
with  all  such  reasonable  expenses  as  he 
may  have  been  obliged  to  incur,  and 
which  may  be  considered  as  the  necesa- 
ry  consequence  of  the  neglect  of  the 
principal  to  discharge  his  own  debt. 
But  extraordinary  expenses,  which 
might  have  been  avoided  by  payment  of 
the  money,  or  remote,  and  unexpected 
consequences,  are  never  considered  as 
coming  within  the  contract." 

(n-)  Tavlor  r.  Mills,  Cowp.  525  ;  Pow- 
ell V.  Smi'th,  8  Johns.  249. 


462  THE  LAW  OF  CONTRACTS.  [PART  II. 

interest,  can  be  recovered.  But  the  principal  may  give  to 
the  surety  a  distinct  promise  to  pay  money  or  do  some 
specific  act,  and  then  the  surety  may  have  an  action  before 
he  pays  anything  for  his  principal.  Thus,  if  one  is  surety 
for  another,  who  is  bound  to  pay  a  third  party  a  certain  sum 
at  a  certain  time,  and  the  principal  promises  the  surety  that 
he  will  pay  that  sum  at  that  time,  so  as  to  discharge  the 
surety,  if  he  fails  to  pay  it  so  that  the  surety  becomes  liable, 
the  surety  may  recover  from  the  principal  on  his  promise, 
before  the  surety  pays  the  debt;  {x)  and  if  the  principal  agree 
with  the  surety  to  pay  the  debt  at  a  certain  time,  and  fail  to 
pay  it  at  that  time,  the  surety  may  thereupon  recover  the 
whole  amount  of  the  debt  without  showing  any  actual  dam- 
age, {i/)  If  the  promise  of  the  principal  to  the  surety  be  only 
to  indemnify  and  save  him  harmless,  it  seems  that  if  the 
surety  sees  fit  to  bring  an  action  on  this  promise,  before  pay- 
ing the  debt  of  the  principal,  he  cannot  maintain  it,  unless 
he  can  show  that  he  has  given  his  own  notes,  or  made  other 
arrangements  in  the  way  of  acknowledging  and  securing  the 
debt,  which  are  equivalent  to  its  payment.  From  the  current 
of  authority,  and  from  reason,  it  may  be  regarded  as  a  gen- 
eral rule,  if  not  an  universal  one,  that  where  one's  obligation, 
whether  express  and  voluntary,  or  implied,  or  created  by  law, 
is  only  indirect  and  collateral,  there  is  no  cause  of  action,  or 
at  least  no  right  to  recover  actual  compensation,  unless  there 
has  been  an  actual  damage  arising  from  an  actual  discharge 
of  the  obligation,  (z) 

(x)  Cutler r.  Southern,  iWm's. S.iund.  Church,  C.  J.,  said :  "  "We  think  an  ex- 

116,  n.  (1)  ;  Holmes  v.  Rhodes,  1  B.  &  amination  of  the  cases  will  show  these 

P.  638  ;  Hodgson  v.  Bell,  7  Term.  R.  reusonable  docti-incs ;  that,  if  a  condi- 

97;  Port  v.  Jackson,   17   Johns.   239;  tion,   covenant,  or  promise,  be  only  to 

Thomas  y.  Allen,  1  Hill,  145 ;  Churchill  indemnify  and  save  harmless  a  party 

V.  Hunt,  3  Denio,  321  ;  Gilbert  v.  Wi-  from  some  consequence,  no  action  can 

man,  1  Comst.  550  ;  Lathrop  v.  Atwood,  be  sustained  for  the  liability  or  exposure 

21  Conn.  117.  to  loss,  nor  until  actual  damage,  capa- 

,  ,   T  -o  jr     1    n  nr    (•  hie  of  appreciation   and   estimate,  has 

(.y)  Loosernorc  v  Radford  9  M.  &  been  sustained  by  the  plaintiff.  But  if 
W    607  ;    Lx  parte   Negus     7  W  end.  ^  ^^  y     J^^  ^     ^^       j.^^^ 

49'J;  Churclnll  I,    Hunt.3Uemo,32l;  ^^^^  ^^^  ^^^  the  plaintiff's  benefit,  as 

Lcthbndgei'.  Mytton,2B.&Ad.  7/2;  ^^,j  ^^   ^^   indemnify   and    save    him 

Port  V.  Jackson,  1 7  Johns.  239.  harmless  from  the  consequences  of  non- 

(=)  Gilbert  v.  Wiman,  1  Comst.  550;  performance,  tlie  neglect  to  perform  the 

Rodman  v.  Hedden,  10  Wend.  498.     In  act,  being  a  breach  of  contract,  will  give 

Lathrop  v.  Atwood,  21   Conn.  117, 123,  an  immediate  right  of  action." 


CH.  VIL] 


DAMAGES. 


463 


SECTION  VI. 


OF  THE  BREACH  OF  A  CONTRACT  THAT  IS  SEVERABLE  INTO  PARTS. 


It  may  happen  that  the  injury  complained  of  is  the  breach 
of  a  contract  that  extends  over  a  considerable  space  of  time, 
and  includes  many  acts  ;  or  it  is  a  tort  divisible  into  many 
parts.  The  question  then  arises  whether  the  action  should  be 
for  the  whole  breach  or  the  whole  tort,  and  damages  be  given 
accordingly.  This  must  depend  upon  the  entirety  of  the 
contract,  or  of  the  tort.  If  it  be  a  whole,  formed  of  parts 
which  are  so  far  inseparable  that  if  any  are  taken  away  there 
is  no  completed  breach  or  tort  left,  all  must  be  included  in  the 
demand  and  in  the  damages,  (a)  But  if  they  are  separable 
into  many  distinct  breaches  or  torts,  then  an  action  may  be 
brought  as  if  each  stood  alone,  and  damages  recovered,  [b) 


(a)  Hamblcton  v.  Veere,  2  Saiind.  170, 
note;  Masterton  v.  The  Mayor  of  Brook- 
lyn, 7  Hill,  61.  In  Shaffer  v.  Lee,  8 
Barb.  412,  after  an  elaborate  review  of 
the  cases,  it  was  held,  that  a  bond  con- 
ditioned to  furnish  to  the  obligee  and 
his  wife  all  necessary  meat,  drini<,  lodg- 
ing, washing  clothes,  &c.,  during  both 
and  each  of  their  natural  lives,  was  an 
entire  contract,  and  that  a  failure  by 
the  obligor  to  provide  for  the  obligee 
and  his  wife,  according  to  the  substance 
and  spirit  of  the  covenant,  amounted  to 
a  total  breach  ;  and  that  full  and  final 
damages  should  be  recovered,  for  the 
future  as  well  as  the  past.  In  Koyal- 
ton  V.  The  R.  &  W.  Turnpike  Co.  14 
Verm.  311,  the  defendants  agreed  to 
keep  a  bridge  in  repairfor  twenty  years, 
on  the  plaintiff's  paying  them  twenty- 
five  dollars  a  year.  The  money  was 
paid  and  the  bridge  kept  in  repair  ac- 
cording to  the  agreement  for  eight 
years,  when  the  defendant  ceased  to  re- 
pair, and  the  action  was  then  brought. 
Redjield.  J.,  said,  that  the  jury  should 
"  assess  the  entire  damages  for  the  re- 
maining twelve  years."  See  our  re- 
marks on  entirety  of  contracts,  with 
the  notes,  pp.  2a»- 32,  vol.  2. 

(6)  Crain  t\  Beach,  2  Barb.  120  ;  Bris- 
towe  V.  Fairclough,  1  M.  &  G.  143: 
Clark  V.  Jones,  1  Denio,  516;  Puck- 
ell  V.  Smith,  5  Strobli.  20 ;  supra,  note 
(a),  and  cases  cited.  In  Crain  v.  Beach, 


2  Barb.  120,  the  defendants  had  cove- 
nanted to  keep  a  certain  gate  in  repair, 
and  to  use  common  care  in  shutting  it, 
and  in  passing  and  repassing  the  same  ; 
it  was  held,  that  if  the  gate  should  be  suf- 
fered to  be  out  of  repair,  or  should  be 
allowed  to  remain  open  by  the  defendants, 
the  damages  in  an  action  for  the  breach  of 
their  covenant  would  be  determined  by 
the  amount  of  the  plaintiff's  loss,  by 
means  of  the  breach  proved  on  the  trial 
of  the  cause,  and  that  the  recovery  there- 
of would  be  no  bar  to  a  future  action 
for  a  renewed  breach  of  the  covenant. 
S.  C,  in  Error,  2  Comst.  86.  Wright, 
J.,  said :  '•  To  constitute  an  efiectual 
bar,  the  cause  of  action  in  the  former 
suit,  should  be  identical  with  that  of 
the  present.  It  is  the  same  cause  of 
action  where  the  same  evidence  will 
support  both  the  actions,  although  they 
happen  to  be  grounded  on  different 
writs.  Rice  v.  King,  7  Johns.  20.  But 
the  evidence  in  both  actions  may  be  in 
part  the  same ;  yet  the  subject-matter 
essentially  different,  and  in  such  case 
there  is  no  bar.  For  example,  if  money 
be  awarded  to  be  paid  at  different  times, 
assumpsit  will  lie  on  the  award  for  each 
sum  as  it  becomes  due.  So  on  an 
agreement  to  pay  a  sum  of  money  by 
instalments,  an  action  will  lie  to  reco- 
ver each  instalment  as  it  becomes  due. 
In  covenant  for  non-payment  of  rent,  or 
of  an  annuity  payable  at  different  times, 


464 


THE   LAW   OF   CONTRACTS. 


[part  II. 


There  would  seem,  however,  to  be  this  qualification  to  this 
rule.  If  there  are  many  parts  of  the  contract,  and  some  have 
been  broken,  and  others  not  yet ;  as  if  money  was  to  be  paid 
on  the  first  of  every  month  for  two  years,  and  one  year  has 
expired  and  nothing  has  been  paid,  the  creditor  may  bring 
his  action  for  one  or  more  of  all  the  sums  due,  and  recover- 
ing accordingly,  may,  when  the  others  fall  due  and  are  un- 
paid, sue  for  them,  (c)  But  if  at  any  time  he  sues  for  a  part 
only  of  the  sums  due,  a  judgment  will  be  held  to  be  satisfac- 
tion of  all  the  sums  which  could  have  been  included  in  that 
action,  and  were  due  and  payable  by  the  terms  of  that  con- 
tract ;  and  therefore  no  further  suit  can  be  maintained  on 
any  of  them,  (d)  The  reason  for  this  rule  is  the  prevention 
of  unnecessary  and  oppressive  litigation.  And  it  would 
doubtless  be  regarded  in  actions  founded  on  tort,  whenever 
it  was  distinctly  applicable  to  them. 


the  plaintiff  may  bring  a  new  action 
toties  qiioties,  as  often  as  the  respective 
sums  become  due  and  payable ;  yet  in 
each  of  these  examples,  the  evidence  to 
support  the  diftcrcnt  actions  is  in  part 
the  same.  In  tliis  case  tlie  same  cove- 
nant was  tlie  foundation  of  botli  actions  ; 
the  same  evidence,  therefore,  in  part,  is 
alike  common  to  both  ;  but  there  is  this 
difference ;  in  tlie  former  suit  the 
breach  was  assigned,  and  the  actual 
damages  laid  as  having  accrued  prior 
to  the  commencement  thereof;  in  the 
present,  damages  arc  sougiit  to  be  re- 
covered for  a  breach  subsequent  to  such 
former  action.  In  the  present  action 
the  plaintiff  could  not  have  recovered 
for  damages  that  had  accrued  prior  to 
the  first  suit,  for  he  is  not  permitted  to 
split  up  an  entire  demand,  and  bring 
several  suits  thereon ;  but  he  may  sliow 
a  breach  subsequent  to  the  former  suit, 
and  recover  the  actual  damages  arising 
from  such  subsequent  breacli." 

(c)  Cooke  V.  Whorwood,  2  Saund. 
337 ;  In  Asiiford  i'.  Hand,  Andrews, 
370,  an  action  on  the  case  was  brought 
by  an  indorsee,  upon  a  note  of  hand,  for 


paying  51.  5s.  by  instalments  ;  and  the 
last  day  of  payment  being  not  y  ceo  me, 
he  counted  only  for  such  part  as  was 
due.  "  It  was  resolved,  that  though  in 
tlie  case  of  an  entire  contract  an  action 
cannot  be  brought  until  all  the  days  are 
past,  yet  where  the  Jiction  sounds  in 
damages,  (which  is  the  present  case) 
the  plaintiff  may  sue,  in  order  to  reco- 
ver damages  for  every  default  made  in 
payment." 

{d)  Bendernagle  v.  Cocks,  19  Wend. 
207  :  Colvin  v.  Corwin,  15  Wend.  5.57  ; 
Pinney  v.  Barnes,  17  Conn.  420.  In  case 
of  a  running  account,  for  goods  sold 
or  money  lent,  it  has  been  held,  that  a 
suit  upon  one  or  more  items,  would  bar 
a  subsequent  suit  on  other  items  due  at 
the  time  of  the  first  suit.  Guernsey  v. 
Carver,  8  Wend.  492;  Bendernagle  v. 
Cocks,  supra  ;  Lane  i\  Cook,  3  Day, 
255;  Avery  f.  Fitch,  4  Conn.  362.  The 
opposite  doctrine  was  held  in  Badger  v. 
Titcomb,  15  Pick.  409.  If  any  of  the 
items  were  not  due  at  the  time  of  the 
action,  a  suit  for  them  would  not  bo 
tlicrel)y  barred.  McLaughlin  v.  Ilill,  6 
Verm.  20. 


en.  VII.]  DAMAGES.  465 

SECTION  VII. 

OF  THE   LEGAL   LIMIT   TO   DAMAGES. 

The  law  would  avoid  unnecessary  litigation,  would  make 
it,  where  necessary,  efficacious  and  conclusive  in  its  ac- 
tion, and  would  protect  each  party  against  the  other,  by 
doing  exact  justice  to  both.  These  are  its  ends;  and  as  its 
rules  are  only  means  for  these,  they  are  of  secondary  value ; 
but  as  without  them  there  would  be  no  certainty- in  judicial 
action,  and  no  accurate  knowledge  of  personal  rights  and 
obligations,  these  rules  are  adhered  to,  although  in  one  case 
or  in  another  they  work  a  hardship,  until  it  is  found  that 
their  general  effect  is  mischievous,  in  which  case  they  are  set 
aside  ;  or  controlled  by  those  more  general  rules  by  which  the 
particular  rules  may  be  qualified  and  varied  in  their  opera- 
tion, and  yet  leave  judicial  action  systematic  and  regular. 
These  general  remarks  have  an  especial  bearing  on  the 
subject  of  damages.  Of  the  ancient  rules  some  have  been 
abrogated,  and  others  greatly  qualified.  And  in  modern 
times,  courts  seek  to  apply  to  each  case  such  rules  as  will 
carry  out  the  universal  rule,  as  far  as  may  be,  that  the  actual 
damages  must  measure  the  compensation  given  for  it  by  the 
law. 

1.   In  an  Action  against  an  Attorney  or  Agent. 

Thus,  in  an  action  against  an  attorney  for  negligence,  it 
was  once  said  that  the  jury  might  find  what  damages  they 
pleased,  (e)  But  the  law  would  not  now  relinquish  its  func- 
tions in  this  way ;  for  although  quite  as  strongly  disposed 
as  ever,  that  an  agent  should  compensate  his  principal,  or  a 
servant  his  employer,  for  any  wrong  done,  it  would  endeavor 
to  measure  the  injury,  and  by  the  injury  to  measure 
the  compensation,  as  carefully  in  this  case  as  in  any 
other.  In  accordance  with  this  principle,  it  has  been  de- 
cided that  where  an    agent  is  directed  to  sell  goods,  if  he 

(e)  Kussel  v.  Palmer,  2  Wils.  32S. 


466 


THE   LAW   OF   CONTRACTS. 


[part  II. 


can  get  a  certain  price,  and  not  to  sell  for  less,  but  does  in 
fact  sell  for  less,  but  without  fraudulent  purpose,  the  actual 
value  of  the  goods  sold,  and  not  the  price  set  upon  them, 
must  be  considered  in  estimating  the  damages.  (/)  If  a 
factor,  having  made  advances  on  goods  consigned  to  him  for 
sale  at  a  limited  price,  do  afterwards,  in  good  faith,  and  with 
reasonable  delay  and  proper  precautions,  sell  them  for  less  than 
their  limited  price,  but  at  a  fair  market  price,  he  may  recover 
the  balance  of  his  advances,  if  the  consigner  or  principal  refuse 
to    pay  them,  on  a  proper  application  and    after  a  sufiicient 


{f}  Blot  V.  Boiceau,  3  Comst.  78, 
overruling  S.  C.  1  Sandf.  Ill ;  Anstilly. 
Crawford,  7  Ala.  335  ;  Ainsworth  v. 
Partillo,  13  Ala.  460. 

lu  Frothingham  t".  Everton,  12  N.  11. 
239,  the  plaintiiTs,  March  27th,  1837,  re- 
ceived of  the  defendant  a  consignment 
of  wool,  with  instructions  not  to  sell  it 
for  less  than  twcnt.y-four  cents  a  pound. 
The  price  of  wool  fell  soon  after  the 
consignment,  and  continued  to  decline 
until  October  5th,  1837,  when  the  plain- 
tiffs, without  previous  notice  to  the  de- 
fendants, sold  the  wool  for  fourteen 
cents  per  pound,  which  was  then  the 
fair  market  price  and  as  high  as  wool 
sold  at  any  subsequent  time  before  the 
suit  was  jjrought.  An  advance  was 
made  by  the  plaintiffs,  at  the  time  of 
the  consignment,  and  this  action  was 
brought  to  recover  the  difference  be- 
tween the  amount  of  that  and  the  pro- 
ceeds of  the  wool.  It  was  held  that  the 
plaintiff  could  recover.  Parker,  C.  J., 
said :  "  The  next  question  is,  to  what 
extent  the  plaintiffs  arc  accountable  to 
the  defendant  for  this  breach  of  his  in- 
structions. If  to  the  amount  of  the 
price  limited,  which  would  be  the  result 
of  treating  them  as  i)urchasers  at  the 
price  limited,  it  goes  to  the  whole  of  the 
plaintiff's'  action.  But  upon  what  prin- 
ciple are  they  to  be  made  accountable 
to  that  extent  ?  The  general  principle 
is,  that  where  one  suffers  by  the  negli- 
gence or  breach  of  duty  of  another,  the 
latter  is  answerable  in  damages  for  the 
amount  of  the  injury.  Had  thescgoods 
been  destroyed  by  the  negligence  of  the 
plaintiffs,  they  would  have  been  answer- 
able for  the  value,  and  the  damages 
could  not  have  been  extended  beyond 
that,  merely  because  the  defendant  had 
ordered  tliem  to  sell  at  a  certain  price, 
and  not  for  less.     If,  instead  of  a  loss  by 


negligence,  the  loss  be  by  a  disobedi- 
ence of  orders,  without  fraud,  the  result 
must  be  tlie  same.  Had  the  defendant 
brought  his  action  against  the  plaintiffs, 
for  wrongfull}'  selling  below  the  limit, 
he  would  have  been  entitled  to  recover 
the  damages  sustained  by  the  wrongful 
act.  If  the  goods  of  the  principal  are 
negligently  lost  or  tortiously  disposed  of, 
by  the  agent,  he  is  made  liable  for  the 
actual  value  of  the  goods,  at  the  time  of 
the  loss  or  conversion.  Story  on  Agen- 
cy, 215.  And  if,  instead  of  bringing  his 
action  to  recover  this  actual  value,  the 
consignor  set  up  the  breach  of  duty,  in 
defence  of  a  suit  by  the  factor  for  mon- 
eys advanced  upon  the  goods,  the  meas- 
ure of  his  right  must  be  the  same.  It 
cannot  be  extended  beyond  the  amount 
of  the  injury  sustained  by  him.  And 
there  can  be  no  sound  principle  which 
will  enlarge  his  rights  in  this  respect, 
merely  because  he  has  obtained  a  general 
advance  on  the  goods,  unless  there  were 
an  agreement  that  the  factor  should  look 
to  the  goods  alone  for  his  reimburse- 
ment." In  Blot  V.  Boiccau,  supra, 
Branson,  J.,  said :  "  It  is  said  that  tiiis 
rule  of  damages  will  enable  factors  to 
violate  the  instructions  of  their  princi- 
pals with  impunity.  But  that  is  a  mis- 
take. If  they  sell  below  the  instruction 
price,  though  at  the  then  market  value, 
they  will  take  the  peril  of  a  rise  in  the 
value  of  the  goods  at  any  time  l)efore 
an  action  is  brought  for  tlie  wrong  ;  and 
perhaps  down  to  the  trial.  The  owner 
has  a  right  to  keep  his  goods  for  a  bet- 
ter price;  and  if  the  market  value  ad- 
vances after  the  wrongful  sale,  the  in- 
creased price  will  form  the  standard  for 
ascertaining  his  loss,  wliich  the  factor, 
who  has  departed  from  instructions, 
must  make  good." 


en.  VII.]  DAMAGES.  467 

time,  (g-)  Still,  it  may  be  true  that  if  the  sale  were  fraud- 
ulent on  the  part  of  the  agent,  then  it  might  be  said  that 
the  agent  had,  as  it  were,  taken  for  his  own  use  the  goods  of 
his  principal,  and  must  pay  for  them  the  price  which  he  knows 
that  the  principal  had  set  on  them. 

If  the  failure  of  the  agent  to  purchase  goods  ordered  by  his 
principal  to  be  sent  on  a  mercantile  adventure,  be  the  ground 
of  the  action,  it  is  a  question  whether  the  price  of  the  goods 
when  they  should  have  been  purchased,  or  the  price  at  which 
they  would  have  been  sold,  should  be  taken  in  making  up 
damages.  We  have  already  seen  that  the  law  generally  dis- 
regards profits,  from  their  remoteness  and  uncertainty,  (A) 
But  in  this  case,  we  think  it  should  be  held  that  the  loss 
of  the  principal  was  not  of  the  goods  alone,  but  of  the 
adventure  ;  and  that  he  should  have,  by  way  of  compen- 
sation, such  profits  of  the  adventure  as  he  can  prove  with 
reasonable  certainty  ;  that  is,  the  plaintiff  should  be  actually 
indemnified,  (i)  And  on  the  other  hand,  as  the  converse  of 
this  rule,  the  defendant  may  show  what  the  actual  loss  is, 
and  reduce  the  claim  of  the  plaintiff"  accordingly.  (J  ) 


{g)  Parker  v.  Brancker,  22  Pick.  40;  immediately  from  the  broach  of  orders, 

Martield   i;.  Goodhue,  3  Comst.  62.  See  may  be  taken  into  the  estimate.     Thus, 

also  Erothingham  v.  Everton,  supra.  in  this  case,  an  estimate  of  possible  pro- 

(A)  See  pp.  459,  4G0,  and  notes.  fit  to  be  derived  from  investments  at  the 

(i)  Ryder  v.  Thayer,  3  Louis.  Ann.  Havana,  of  the  money  arising  from  the 

R.  14'J.     In  Bell  v.  Cunningham,  3  Pe-  sale  of  the  tiles,  taking  into  view  a  dis- 

ters,  69,  S.  C.  5  Mason,  161,  the  owners  tinct    operation,   would    have   been  to 

of  The  Halcyon  at  Boston,  sent  her  from  transcend  the  proper  limits  which  a  jury 

Havana  to  merchants  at  Leghorn,  with  ought  to  respect;  but  the   actual  value 

directions  to  invest  a  part  of  her  freight  of  the  tiles  themselves,  at   the  Havana, 

in  marble  tiles  and  the  balance  in  wrap-  affords  a  reasonable   standard   for  the 

ping  jiaper,  to  be  sent  to  Havana.     The  estimate  of  damages."     See  Masterton 

consignees,  in  violation  of  these  direc-  v.    The    Mayor,    &c.   of   Brooklyn,    7 

tions,  invested  the  entire  freight  in  wrap-  Hill,  61. 

ping  paper,   on   the  sales  of    which  a  (/)  Allen  u.  Suydam,  20  Wend.  321; 

heavy  loss  was  sustained.     The  marble  Hoard  v.  Garner,  3  Sandf   179  :  Brown 

tiles  "would  have   yielded  a  considerable  r.  Arrott,  6  W.  &  S.  402,  S.  C.  6  Whart. 

profit.     The  action  was  brought  against  9;  Van  Wart  v.  Woollcy,  Dowl.  &  Ryl. 

the  consignees  for  breach  of  orders.   The  574.     See    also   Harvey   v.    Turner,   4 

court  held  tliat  the   actual  value  of  the  Rawle,   223.     In  Allen  v.  Snydam  the 

tiles  at  Havana  was  to  be  considered  in  agent  was  negligent  in  not  presenting  a 

estimating  the  damages,  thus  allowing  bill  for  acceptance   at  the  proper  time, 

the    probable    profits    of    the    adven-  It  was  held  that  the  measure  of  dam- 

ture.    il/«?-s/io//,  C.  J.,  said  :  "We  do  not  ages  was  pnm(j/(jc/e  the  amount  of  the 

mean  that  speculative  damages,  depend-  bill;  but  that  the   defendant  was  at  lib- 

ent  on    possible    successive     schemes,  erty  to  show  circumstances    tending  to 

ought  ever   to   be  given ;  but  positive  mitigate  damages  or  to  reduce  the  re- 

and   direct  loss,  resulting  plainly  and  covery  to  a  nominal  amount. 


4G8  THE  LAW  OF  CONTRACTS.  [PART  II. 

If  an  agent  sues  his  principal,  or  a  servant  his  employer, 
the  same  rule  will  be  applied.  lie  can  recover  compensation 
for  the  injury  sustained  by  the  fault  of  the  defendant,  and 
no  more,  [k)  If  he  claims  re-payment  of  extra  expenses,  it 
is  a  good  defence  that  they  were  caused  by  his  own  negli- 
gence. (/) 

If  he  claims  commissions  it  is  a  good  defence  that  he  has 
caused  to  his  principal  a  greater  loss  than  his  claim,  because 
this  loss,  for  which  he  is  liable,  has  more  than  repaid  his 
claim,  (m) 

2.   In  an  Action  against  a  Common-  Carrier. 

If  an  action  be  brought  against  a  common-carrier  for  not 
carrying  or  not  delivering  goods,  all  the  elements  which  enter 
into  the  actual  loss  must  be  taken  into  consideration  as  in 
other  cases.  The  general  rules  adopted  seem  to  be  these. 
If  a  carrier  loses  goods  or  make  a  wrong  delivery,  in  such  a 
manner  as  to  render  himself  liable  for  them,  the  net  value 
of  the  goods  at  the  place  of  delivery  is  the  measure  of  dam- 
ages, (w)  But  if  he  fails  to  perform  his  contract,  the  goods 
being  still  within  the  power  of  the  owner,  the  difference  be- 
tween their  value  at  the  place  where  he  receives  them  and 
their  net  value  at  the  place  of  delivery,  at  the  time  when 
they  would  have  arrived,  if  they  had  been  carried  according 
to  the  contract,  is  the  measure  of  damages,  (o)  and  it  seems 
that  a  jury  may  give  interest  by  way  of  damages;  when  a 
loss  arises  from  the  misconduct  of  the  carrier,  [j)) 

(/j)  Stocking  r.  Sage,  1  Day's  K.  522  ;  213;    Amory  i;.   McGregor,  15  Johns. 

Powell   V.   Ncwburgh,    19  Johns.   284;  24,  .38;  Brandt  2\  Boroiby,  2  B.  &  Ad. 

Adamson  v.  Jarvis,  4  Bing.  G6.  932  ;  Arthur  v.  The  Sciiooner  Cassius, 

(/)  Montrion    r.  JcflVies,   2    Car.     &  2  Story,  81.     In  Wheelwright  v.  Beers, 

Tayne,  113  ;  Howard  v.  Tucker,  1  B.  &  2  Hall'  391,  it  was  held,  by  a  majority 

Ad.  712;  Edmiston  w.  Wright,  1  Camp,  of  the  court,  that  in  such  cases  the  in- 
voice price  is  to  be  the  measure  of  dam- 


(m)  Dodge  v.  Tilcston,  12  Pick.  328 
White  V.  Ciiapman,  1  Starkie,  113 
Kelly  V.  Smith,  I  Blatchf.  C.  C.  290 
Sec  also  Bell  n.  Palmer,  6  Cow.  128 
The  Allaire  Works  v.  Guion,  10  Barb 
53.  But  damages  cannot  be  recouped 
unless  they  arise  in  the  particular  con 
tract  on  which  the  action  is  founded 
Deming  c.  Kemp.  4  Sandf.  147. 


ages,  unless  the  carrier  be  guilty  of 
fraud  or  fault ;  hut  Oakley,  J.,  gave  a 
very  able  dissenting  oi)inion  in  favor  of 
the  rule  as  laid  down  al)ove. 

(o)  Bracket  v.  M'Nair,  14  Johns.  170  ; 
O'Conner  v.  Forstcr,  10  Watts,  418. 
But  sec  Smith  r.  Richardson.  3  Caines, 
219. 

(;))  Watkinson  v.  Laughton,  8  Johns. 


(n)  Watkinson  v.  Laugiiton,  8  Johns.     213.     In  Black  v.   Baxcndalc,  1  Exch 


en.  VII.]  DAMAGES.  4G9 

But  from  the  elements  which  make  up  the  actual  loss,  are 
to  be  eliminated  those  causes  of  loss  which  spring  not  merely 
from  the  plaintiff's  conduct,  but  also  from  his  omission  to  do 
what  he  might  by  reasonable  endeavors  have  done,  to  lessen 
the  loss.  For  if  when  a  carrier  breaks  his  contract  to  carry 
goods,  the  owner  can,  by  the  exercise  of  ordinary  diligence, 
obtain  other  means  of  conveyance,  he  is  bound  to  obtain 
and  use  them,  and  cannot  recover  more  than  the  loss  oc- 
casioned by  the  extra  expense,  trouble,  and  delay,  (q)  So 
if  a  party  contracts  to  furnish  a  certain  quantity  of  cargo, 
and  fails  to  deliver  the  entire  quantity,  the  carrier  is  bound  to 
receive  goods  from  third  persons,  if  offered,  sufficient  to  make 
up  the  deficiency,  even  at  a  reduced  rate  of  compensation,  if 
offered  at  the  current  prices  ;  and  place  the  net  earnings  of 
the  goods  thus  substituted  to  the  credit  of  the  person  who 
originally  agreed  to  furnish  the  whole  cargo,  (r)  And  if  the 
owner  of  goods  has  received  injury  by  the  negligence  of  the 
carrier,  the  acceptance  of  the  goods  is  no  bar  to  the  action, 
but  may  be  considered  in  mitigation  of  damages,  (s) 

In  this  action,  as  well  as  in  some  others,  the  question  has 
arisen  whether  the  value  of  the  goods  to  be  taken  as  a 
measure,  is  that  value  which  could  be  realized  in  open 
naarket,  without  reference  to  the  true  worth  of  the  thing. 
If  some  wild  speculation,  or  the  prevalence  of  a  gross  error 
has  given  to  certain  articles  for  a  brief  time,  a  value  al- 
together in  excess  of  its  natural  value,  and  the  fault  of  the 
defendant  has  prevented  the  plaintiff  from  obtaining  this 
price  by  selling  at  the  highest  point  of  the  market,  can  the 
defendant  show  in  mitigation  of  damages,  the  utter  un- 
reasonableness of  such  a  price  and  its  brief  duration  ?  The 
answer  both  of  reason  and  of  authority  seems  to  be,  that 
while  the  plaintifT  cannot  avail  himself  of  any  acts  on  his 
part  of  fraudulent  character,  he  is  entitled  to  compensation 

410,  it  was  licld  that  the  necessary  ex-  (r)  Heekslicr  i\  McCrea,  24  Wend, 

penses   to  which  the  owner  is  put,  in  304  ;  See   also  Shannon  v.  Comstock, 

consequence  of    tlie  carrier's   delay  to  21    Wend.    457 ;  Costigan   v.  M.  &  II. 

fulfil  his    contract,  are  recoverable  as  II.  K.  Co.  2  Denio,  GIO  ;  Walworth  v. 

damages.  Pool,  4  Eng.  (Ark.)  394  ;  Eobiuson  v. 

(7)'0'Conner  v.   Forster,  10  Watts,  Noble,  8  Peters,  181. 

418.  (s)  Bowman  v.  Teall,  23  Wend.  306. 

VOL.  II.  40 


470 


THE   LAW    OF   CONTRACTS. 


[part  II. 


for    his    actual   loss  of  any   price   he   might   have   honestly 
obtained,  (i) 

3.  In  the  Action  of  Trover. 

In  the  action  of  trover,  to  which  a  plaintiff  generally 
resorts  for  remedy  when  his  personal  property  has  been  ap- 
propriated by  another,  the  value  of  the  property  is,  in  general, 
the  measure  of  the  damages,  [n)  It  is  true  that  this  is  some- 
times no  adequate  compensation  for  the  injury  he  has  sus- 
tained ;  but  then  he  should  have  sued  in  trespass,  in  which 
action  he  might  have  recovered  also  compensation  for  the 
additional  damage  he  has  sustained,  if  it  were  the  direct  and 
natural  consequence  of  the  injury.  He  must  be  limited  by 
the  action  he  brings  ;  for  if  he  waives  the  tort  altogether,  and 
brings  assumpsit  for  money  had  and  received,  he  can  recover 


(0  Smith  V.  Griflith,  3  Hill,  333. 
This  was  an  .iction  against  common- 
carriers,  lor  injury  to  a  quantity  of  mul- 
berry trees,  in  consequence  of  dehiyinn: 
to  transport  them.  After  the  phiintiff 
had  given  evidence  of  their  market  va- 
lue at  the  time  the  injury  occurred,  the 
defendant  offered  to  prove  that  at  that 
time  tlie  marlict  value  was  factitious  ; 
that  from  subsequent  experiments  this 
kind  of  trees  had  been  ascertained  to  be 
of  no  intrinsic  value:  that  they  were 
not  worth  cultivating  for  the  purpose 
of  raisiiii'  silk-worms  ;  and  tliat,  if  as 
much  liadl>een  known  of  them,  when  the 
injury  occurred,  as  at  the  time  of  the 
trial,  they  could  have  been  bought  at  a 
very  low  price.  This  evidence  was  held 
inadmissible,  Con-en,  J.,  dissenting.  Nel- 
son, C.  J.,  said  :  "  Assuming  that  there 
is  no  defect  in  the  qnaltity  of  the  ar- 
ticle, the  fair  test  of  its  value,  and  con- 
sequently of  the  loss  to  the  owner,  if  it 
has  been  destroyed,  is  the  price  at  the 
time  in  the  market.  This  makes  him 
whole,  because  the  fund  recovered  ena- 
bles him  to  go  into  the  market  and 
supply  himself  again  with  the  goods  of 
which  he  has  been  deprived.  Tlic  ob- 
jection to  the  evidence  olVercd,  is  that 
it  ])ro]ioscd  to  take  into  consideration 
the  fluctuations  of  the  market  value  long 
subse(iuont  to  the  time  when  the  injury 
happened  :  thereby  making  the  measure 
of  damages  depend  upon  tiie  accidental 
fall   of  prices   at   some   future  period, 


which  might  or  might  not  occur;  and 
if  it  did,  the  loss  might  or  might  not 
have  fallen  upon  the  plaintiff,  as  for 
aught  the  court  or  jury  could  know,  he 
may  have  parted  with  the  property 
before  depreciation.  ...  I  admit 
that  a  mere  speculating  price  of  the 
article,  got  up  by  the  contrivance  of  a 
few  interested  dealers,  to  control  the 
market  for  their  own  private  ends,  is 
not  the  true  test.  The  law,  in  regulatiiTg 
tlie  measure  of  damages,  contemplates 
a  range  of  the  entire  market,  and  the 
average  of  prices,  as  thus  found,  running 
through  a  reasonable  period  of  time. 
Neither  a  sudden  and  transient  inflation 
or  depression  of  prices  should  control 
the  question.  These  are  often  acciden- 
tal, produced  by  interested  and  illegiti- 
mate combinations,  for  temporary,  spe- 
cial, and  selfish  objects,  independent  of 
the  influences  of  lawful  commerce,  — 
a  forced  and  violent  perversion  of  the 
laws  of  trade,  not  within  tlie  contem- 
plation of  the  regular  dealer,  and  not 
deserving  to  be  regarded  as  a  proper 
basis  ui)on  which  to  determine  the  value, 
wiien  the  fact  l)Ccomes  material  in  the 
administration  of  justice." 

(m)  fiercer  v.  Jones,  3  Camp.  477; 
Kennedy  v.  Strong,  14  Johns.  128; 
Kennedy  v.  Whitwell,  4  Tick.  4G6 ; 
Sargent  v.  Franklin  Ins.  Co.  8  Pick. 
90;  Parks  r.  Boston,  l.")  Pick.  198,207, 
per  S/iuu;  C.  J. 


en.   VII.]  DAMAGES.  471 

only  the  nmount  which  the  defendant  has  actually  received 
by  the  sale  of  the  property,  although  this  may  be  much  less 
than  its  value,  (v)  If  an  owner  bring  trover  after  he  has 
regained  the  possession  of  his  property,  or  otherwise  had  the 
equivalent  benefit  of  it,  he  can  only  recover  damages  to  the 
extent  of  the  injury  he  has  sustained  ;  as,  for  example,  for 
the  injury  to  the  chattel,  and  the  value  of  its  use.  (lo)  If 
the  defendant  has  a  lien  on  the  property  for  a  certain  amount, 
that  amount  may  be  deducted  by  the  jury  from  the  value,  in 
assessing  the  damages,  (x) 

In  trover  for  a  bill,  or  note,  or  other  chose  in  action,  the 
measure  of  damages  is,  prima  /aae,  the  value  on  its  face,  {y) 
But  the  insolvency  of  the  parties  liable  therein,  payment, 
in  whole  or  in  part,  or  any  other  facts  tending  directly  to 
reduce  its  value,  may  be  shown  in  mitigation  of  damages,  (c) 

Whether,  in  this  or  any  action,  instead  of  the  actual  value, 
that  which  the  plaintiff  puts  upon  the  property,  as  a  gift, 
perhaps,  of  a  dear  friend,  or  for  other  purely  personal  reasons, 
can  be  recovered,  is  not  perhaps  certain.  We  think  it  quite 
clear,  however,  that  ihhpretium  affectionis  cannot  be  recovered 
unless  in  cases  where  the  conversion  or  appropriation  by  the 
defendant  was  actually  tortious ;  and  in  that  case  we  should 
be  disposed  to  hold,  that  the  defendant  should  be  made  to 
pay  what  he  would  have  been  obliged  to  give  if  he  had 
bought  the  article  ;  or,  at  least,  that  the  damages  might  be 
considerably  enlarged  in  such  a  case,  on  the  principle  of  ex- 
emplary damages,  {a) 

(v)  3  Amr.  Jur.  288,  289  ;  Bac.  Abr.  Sedgwick  onDamages,  p.  474  ;  Suydam 

Trover,  A. ;  Lindou  v.  Hooper,  Cowp.  v.  Jenkins,  3  Sandf.  621.  Per  Duer,  J.: 

419,   per   Lord   Mansjield;    Hunter    v.  "  In  most  cases,  the  market  value  of  the 

Prinsess,  10  East,   378,  391,  per  Lord  property  is  the  best  criterion  of  its  value 

EUenborough.  to  the  owner,  but  in  some  its  value  to 

(?r)  Greenfield  Bank   v.   Leavitt,  17  the  owner  may  greatly  exceed  the  sum 

Pick.  1  ;  Curtis  v.  Ward,  20  Com.  204;  that  any  purchaser  would  be  willing  to 

Erving  r.  Blount,  20  Ala.  694 ;  Sparks  pay.     The  value  to  the  owner  may  lie 

V.  Purdv,   1 1- Miss.  219 ;  Hunt  v.   Has-  enhanced  by  personal  or  family  consi- 

kell,  24  Maine,  339.  derations,  as  in  the  case  of  family  pic- 

(.(•)  Green  v.   Farmer,  4  Burr.  2214,  tures,  plate,  &c.,  and  we  do  not  doul)t 

2223;  Chamberlin    v.   Shaw,    18    Pick.  t\\<\t  i\\c  '  pretium  affectionis'  instead  of 

283 ;  Fowler  v.  Gilman,  13  Mete.  267.  the  market  price,  ought  then  to  be  con- 

(jl)  Mercer  i'.  Jones,  3  Camp.  477.  sidered  by  the  jury  or  court,  in  estima- 

(~)  Ingalls    V.    Lord,    1    Cow.   240;  ting  the  value."     In  Mississippi,  in  the 

Komig  i\  Eomig,  2  Rawle,  241.  case  of  a  slave,  the  owner  is  permitted 

(n)   Lord     Kaimes's    Principles     of  to  seek  equitable  relief,  and  to  claim  a 

Equity,  bk.  1,  part  1,  ch.  iv,  §  v,  p.  159 ;  specific  return  of  the  property,  where  at 


472 


THE  LAW   OF   CONTRACTS. 


[part  II. 


The  value  of  the  property  being  the  measure  of  damages 
in  trover,  as  this  value  may  be  different  at  different  times 
and  in  different  places,  the  question  occurs  which  of  these 
values  is  to  be  this  measure.  If  goods  are  taken  from  the 
owner,  and  some  months  afterwards  an  action  is  brought, 
the  owner  may  have  lost  the  opportunity  of  selling  them  at 
the  highest  price  they  have  reached  in  the  interval.  Is  he 
limited  to  their  value  when  converted ;  or  if  they  have  a 
higher  value  when  he  brings  his  action  or  tries  it,  may  he 
have  that  value  ;  or  if  they  have  been  higher,  and  are  now 
lower,  may  he  have  the  highest  price  that  he  could  at  any 
time  have  received  for  the  property,  had  it  remained  in  his 
possession  ?  Similar  questions  arise  sometimes  in  actions  for 
breach  of  contract  to  sell  for  a  price  payable  in  specific  arti- 
cles, in  replevin,  and  in  some  other  cases.  The  answer  to  thesp 
questions,  to  be  deduced  from  the  general  current  of  autho- 
rity, is,  that  the  value  of  the  property  at  the  time  of  the  con- 
version, with  interest   thereon,  measures   the    damages,  {b) 


common  law  he  would  have  been  limit- 
ed to  an  action  for  damages.  Butler  v. 
Hicks,  11  Sm.  &  Marsh.  78;  Hull  v. 
Clark,  14  Sm.  &  Marsh.  187. 

(6)  Kennedy  v.  Strong,  14  Johns. 
128;  Hepburn  v.  Sewcll,5  H.  &  J.  211  ; 
Kennedy  v.  Whitwell,  4  Pick.  466  ; 
Pierce  v.  Benjamin,  14  Pick.  356,  361 ; 
Parks  V.  Boston,  15  Pick.  198  ;  Johnson 
V.  Sumner,  1  Mctc.  172;  Clark  r.  Whit- 
aker,  19  Conn.  319;  Smethurst  v. 
Woolston,  5  Watts  &  Serg.  106;  Watt 
V.  Porter,  2  Mason,  76  ;  Lillard  v.  Whit- 
aker,  3  Bibb,  92  ;  Sproule  v.  Ford,  3 
Litt.  25.  In  the  case  of  Suydam  v. 
Jenkins,  3  Sandf.  614,  this  subject 
was  discussed  with  great  ability,  in  a 
very  elaborate  opinion,  delivered  by 
Duer,  J.  The  cases  of  West  r.  Went- 
worth,  3  Cowcn,  82,  and  of  Clark  v. 
Pinney,  7  Co  wen,  681,  in  which  it  was 
held  that  the  measure  of  damages  in 
cases  where  property  has  been  withheld, 
is  the  highest  market  price  between  the 
time  of  the  wrongful  withholding  and 
the  time  of  tlie  trial,  were  questioned, 
and  tiie  general  measure  of  damages 
was  held  to  be  the  value  of  tiic  pro]ierty 
at  the  time  the  riglit  of  action  accrued, 
with  interest  tliereon.  But  if  it  can  be 
shown  that  the  addition  of  interest  fails 
to  compensate  the  owner  for  his  actual 


loss,  or  to  prevent  the  wrongdoer  from 
realizing  a  profit,  it  was  held  that  a  fur- 
ther compensation  should  be  made. 
Diicr,  J.,  said  :  "  It  may  be  shown  that 
had  the  owner  retained  possession,  he 
would  have  derived  a  larger  profit  from 
the  use  of  the  property  than  the  interest 
upon  its  value ;  or  that  he  had  con- 
tracted to  sell  it  to  a  solvent  purchaser 
at  an  advance  upon  the  market  price ; 
or  that  when  wrongfully  taken  or  con- 
verted, it  was  in  the  course  of  transpor- 
tation to  a  profitable  market,  where  it 
would  certainly  have  arrived ;  and  in 
each  of  these  cases  the  ditTerencc  be- 
tween the  market  value  when  the  right 
of  action  accrued,  and  the  advance 
which  the  owner,  had  he  retained  the 
possession,  \\ouId  have  realized,  ought 
plainly  to  be  allowed  as  comiJcnsator}^ 
damages,  and  as  such  to  be  included  in 
the  amount  for  which  judgment  is  ren- 
dered. So  where  it  appears  that  the 
owner  in  all  probability  would  have  re- 
tained the  possession  of  tlie  i)ro]ierty 
until  tlie  time  of  trial  or  judgment,  and 
that  it  is  then  of  greater  value  than 
when  he  was  dispossessed,  the  difference 
may  fairly  be  considered  as  a  part  of 
the  actual  loss  resulting  to  him  from 
the  change  of  possession,  and  should 
therefore  be  added  to  the  original  value 


CH.   VII.] 


DAMAGES. 


473 


Bat  it  is  certain  that  the  courts  are  by  no  means  in  agree- 
ment on  this  point ;  and  some  exceptions  to  the  rule  should 
certainly  be  admitted.  Thus,  if  it  can  be  shown  that  the 
plaintiff  suffered  by  the  wrongdoing  of  the  defendant,  a 
specific  injury,  as  by  the  failure  of  a  specific  purpose  for 
which  he  had  bought  the  goods,  or  perhaps  by  the  loss  of  a 
specific  opportunity  of  selling  them,  at  a  certain  profit,  the 
principle  of  compensation  would  require  that  this  should  be 
taken  into  consideration,  (c)  And  if  a  wilful  and  actual  tort 
enter  into  the  plaintiff's  case,  it  has  been  held  that  the  defend- 
ant should  be  compelled  to  pay  to  the  plaintiff  all  that  the 
plaintiff  may  have  lost  in  any  way  by  his  wrongdoing,  (d) 


to  complete  his  indemnity.  .  •  Even 
where  the  market  vahie  of  the  property, 
when  the  rii^ht  of  action  accrued,  would 
more  than  suttice  to  indemnify,  it  is  not, 
in  all  cases,  that  tlie  lial)ility  of  tiie 
wrongdoer  should  be  limited  to  that 
amount.  It  is  for  the  value  that  he  has 
himself  realized,  or  might  realize,  that 
he  is  bound  to  account,  and  for  which, 
judgment  should  be  rendered  against 
him.  Hence,  should  it  appear  in  the 
evidence  upon  the  trial,  that  he  had  in 
fact  olitained  on  the  sale  of  the  proper- 
ty a  larger  price  than  its  value  when  he 
acquired  possession,  or  that  he  still  re- 
tained the  possession,  and  that  an  ad- 
vanced price  could  then  be  obtained,  in 
each  case  the  increase  upon  the  original 
value,  (which  would  otherwise  remain 
as  a  profit  in  his  hands)  ought  to  be  al- 
lowed as  cumulative  damages.  .  .  It 
seems  to  us  exceedingly  clear,  fliat  the 
highest  price  for  which  the  property 
could  have  been  sold  at  any  time  after 
the  right  of  action  accrued,  and  before 
the  entry  of  judgment,  cannot,  except 
in  special  cases,  be  justly  considered  as 
the  measure  of  damages.  When  the 
evidence  justifies  the  conclusion  that  a 
higher  price  would  have  been  obtained 
by  the  owner,  liad  he  kept  the  posses- 
sion, or  has  been  obtained  by  the  wrong- 
doer, we  have  admitted  and  shown  that 
it  ought  to  be  included  in  the  estimation 
of  damages  ;  in  the  first  case,  as  a  por- 
tion of  the  indemnity  to  which  the  own- 
er is  entitled,  and  in  the  second,  as  a 
profit  which  the  wrongdoer  cannot  be 
permitted  to  retain;  but  we  cannot  ad- 
mit that  the  same  rule  is  to  be  followed 
where  nothing  more   is   shown  tiian  a 

40* 


bare  possibility  that  the  highest  price 
would  have  been  realized,  and  still  less 
where  it  is  shown  that  it  would  not 
have  been  obtained  by  the  owner,  and 
has  not  been  obtained  by  the  wrong- 
doer." The  highest  market  value  be- 
tween the  time  of  the  conversion  and 
that  of  the  trial,  was  held  to  be  the 
measure  of  damages  in  the  following 
cases  :  Greening  v.  Wilkinson,  1  C.  & 
P.  625  ;  West  v.  Wentworth,  3  Cowen, 
82;  Clark  v.  Pinney,  7  Cowen,  G81  ; 
Schley  v.  Lyon,  6  Geo.  530 ;  Erving  v. 
Blount,  20  Ala.  694 ;  Kid  v.  Mitchell,  1 
Nott  &  McCord,  334.  In  debt  on  bonds 
for  the  replacement  of  stock,  the  higher 
value  of  the  stock  at  the  time  of  the 
trial  has  been  held  the  just  measure  of 
damages.  Shepherd  v.  Johnson,  2  East, 
211;  McArthur  v.  Seaforth,  2  Taunt. 
257 ;  Harrison  v.  Harrison,  1  C.  &  P. 
412.  These  cases  are  examined  in 
Suydam  y.  Jenkins,  3  Sandf.  614,  632. 
But  see  Kortright  r.  Buftalo  Com. 
Bank,  20  Wend.  91  ;  S.  C.  22  Id.  348. 
In  Massachusetts,  the  rule  which  makes 
the  value  at  the  time  the  right  of  action 
accrues,  with  interest  thereon,  the  meas- 
ure of  damages  for  withholding  proper- 
ty, seems  to  be  established  in  all  cases. 
Gray  v.  Portland  Bank,  3  Mass.  364  ; 
Sargent  v.  Franklin  Ins.  Co.  8  Pick.  90, 
and  cases  cited  supra. 

(c.)  Dunlop  V.  Higgins,  1  Clarke  & 
Pin.  381,  402;  S.  C  12  Jurist,  295, 
per  Lord  Cottenham,  Ld.  Ch.  See  sttpra, 
note  {h). 

((/)  Dennis  v.  Barber,  6  S.  &  P.  420 ; 
Ilarger  v.  M'Mains,  4  Watts,  418.  But 
see  supra,  note  {in). 


474 


THE   LAW   OF   CONTRACTS. 


[PABT  II. 


A  question  may  arise  in  the  case  of  accession  or  confusion 
of  goods.  The  law  on  this  subject,  as  stated  generally,  by 
Blackstone,  (e)  is,  no  doubt,  in  force  at  this  day,  and  in  this 
country,  so  far  as  it  relates  to  the  title  to  property,  which 
is  all  that  he  is  speaking  of.  He  uses  the  word  "  willfully," 
in  speaking  of  confusion.  But  it  may  be  doubted,  even  on 
the  authority  of  the  civil  law,  to  which  Blackstone  refers, 
whether,  in  a  case  of  fraudulent  confusion,  the  party  in  fault 
does  not  lose  his  goods ;  and  on  the  other  hand,  it  may  be 
doubted  whether,  if  the  confusion  be  voluntary,  but  perfectly 
honest,  the  other  party  takes  the  whole  property,  without  any 
allowance  for  the  value  added  to  his  own.  We  cannot  but 
think  that  the  intent  of  the  parties,  and  the  moral  character 
of  the  transaction,  would  enter  into  the  law  of  the  case.  (/) 


(e)  Says  Blackstone:  "  The  doctrine  of 
property  arising  from  accession  is  ground- 
ed on  tlic  riglit  of  occupancy.  By  the 
Roman  law,  if  any  given  corporeal  sub- 
stance received  afterwards  an  accession 
by  natural  or  artificial  means,  as  by  the 
growth  of  vegetables,  the  pregnancy  of 
animals,  the  embroidering  of  cloth,  or 
the  conversion  of  wood  or  metal  into 
vessels  and  utensils,  the  original  owner 
of  the  thing  was  entitled,  by  his  right  of 
possession,  to  the  property  of  it,  under 
such  its  state  of  improvement ;  but  if 
the  thing  itself,  by  such  operation,  was 
changed  into  a  diftcrent  species — as,  by 
making  wine,  oil,  or  bread  out  of  anoth- 
er's grapes,  olives,  or  wheat — it  belonged 
to  tlic  new  operator,  who  was  only  to 
make  a  satisfaction  to  the  former  pro- 
prietor for  the  materials  which  he  had  so 
converted.  And  tlicse  doctrines  arc 
implicitly  copied  and  adopted  l)y  our 
Bracton,  and  iiave  since  been  confirmed 
by  many  resolutions  of  the  courts.  It 
hath  even  been  hekl  if  one  takes  away 
and  clothes  another's  wife  or  son,  and 
afterwards  they  return  home,  the  gar- 
ments shall  cease  to  be  his  property  wlio 
provided  them,  being  annexed  to  the 
person  of  tlic  child  or  woman.  But 
in  tlic  case  of  confusion  of  goods,  where 
those  of  two  persons  arc  so  inter- 
mixed that  the  several  portions  can  be 
no  longer  distinguislied,  the  English 
law  partly  agrees  with,  and  partly  diflcrs 
from,  the  civil.  If  the  intermixture  be 
by  consent,  I  apprehend  tliat,  in  both 
laws,  the  proprietors  have  an  interest  in 


common,  in  proportion  to  their  respec- 
tive shares.  But  if  one  wilfully  inter- 
mixes his  money,  corn  or  hay,  with  that 
of  another  man,  without  liis  approbation 
or  knowledge,  or  casts  gold  in  like  man- 
ner into  another's  melting-pot  or  cruci- 
ble, the  civil-law,  though  it  gives  the  sole 
property  of  the  w^ole  to  him  who  has 
not  interfered  in  the  mixture,  yet  allows 
a  satisfaction  to  the  other  for  what  he 
has  so  improvidently  lost.  But  our  law, 
to  guard  against  fraud,  gives  the  entire 
property,  without  any  account,  to  him 
whose  original  dominion  is  invaded,  and 
endeavored  to  be  rendered  uncertain, 
without  his  own  consent."  2  Black. 
Cora.  404,  405. 

( /■)  Willard  v.  Rice,  1 1  Mete.  493 ;  Pratt 
V.  JBrydnt,  20  Vt.  333  ;  Wingate  v.  Smith, 

20  Maine,  287.     In  Ryder  i-.  Hathaway, 

21  Pick.  298,  trespass  was  brought  for 
carrying  away  and  converting  twenty- 
three  cords  of  wood.  The  defendant 
justified  on  the  ground  that  the  plaintiff 
had  so  mixed  his  own  wood  with  the  de- 
fendant's that  it  was  impossible  to  dis- 
tinguish them.  ]\lorton,  J.,  after  citing 
from  2  Kent's  Comm.  297  ;  "  If  A.  wil- 
fully intermix  his  corn  or  hay,  with  that 
of  15.,  so  that  it  becomes  impossible  to 
distinguish  what  belonged  to  A.  from 
what  belonged  to  B.,  the  whole  belongs 
to  B,"  said  ;  "  but  this  rule  only  applies 
to  wrongful  or  fraudulent  intermixtures. 
There  may  be  an  intentional  inter- 
mingling, and  yet  no  wrong  intended  ; 
as  where  a  man  mi.xes  two  parcels  to- 
gether, supposing  both  to  be  his  own, or 


CH.  VII.]  DAMAGES.  475 

So,  also,  in  a  case  of  accession,  to  take  the  very  instances 
given  by  Blackstone,  if  one  innocently  took  a  piece  of  cloth, 
or  an  ingot  of  gold,  believing  it  to  be  his  own,  and  quadrupled 
the  value  of  the  article  by  his  skill  and  labor  expended  upon 
it,  and  refused  to  deliver  it  to  the  true  owner,  in  the  honest 
belief  of  his  title,  and  without  moral  fault, —  if  the  owner 
succeeded,  in  trover,  in  proving  the  property  to  be  his,  we  are 
of  opinion  that  the  defendant  would  be  allowed  something 
by  way  of  mitigation  of  damages,  of  recoupment,  or  in  some 
other  way,  so  that  while  the  plaintilTwas  fully  compensated, 
he  should  not  be  permitted  to  gain  greatly,  and  the  defendant 
made  to  suffer  greatly,  by  his  mere  mistake.  Indeed,  the  rule, 
as  given  in  Blackstone,  and  sustained  to  some  extent  by  the 
authorities  in  the  Year  Books,  would  lead  to  this  strange  con- 
clusion :  that  if  one  takes  another's  property,  and  expends 
upon  it  ten  times  its  value  in  his  labor,  but  without  going  so 
far  as  to  change  it  into  a  different  species,  he  loses  all  his 
labor,  and  the  original  owner  gains  it.  But  if  he  goes  so 
much  farther  as  to  make  this  change,  then  he  saves  all  the 
value  of  his  labor,  and  the  original  owner  can  recover  only 
the  primitive  value  of  the  property  taken,  (g) 

that  he  was  about  to  mingle  his  with  full}^  taken  and  their  value  increased  by 
his  neighbor's,  by  agreement,  and  mis-  accession,  the  rule  laid  down  in  the  Year 
takes  the  parcel.  In  such  cases,  which  Book,  5  H.  7,  fol.  15,  is  that  the  owner 
may  be  deemed  accidental  mixtures,  it  can  follow  his  property  as  long  as  the 
would  be  unreasonable  and  unjust,  that  identity  of  the  original  material  can  be 
he  should  lose  his  own,  or  be  obliged  to  proved ;  but  if  the  nature  of  the  thing 
take  his  neighbor's.  If  they  were  of  be'  changed,  as  grain  into  ma]4  or  silver 
equal  A'alue,  as  corn,  or  wood,  of  the  into  money,  so  that  the  original  material 
same  kind,  the  rule  of  justice  would  be  cannot  be  identified,  the  original  owner 
obvious.  Let  each  one  take  his  own  loses  his  property,  and  can  only  claim 
given  quantity.  But  if  they  were  of  damages  for  the  article  as  originally 
unequal  value  the  rule  would  be  more  taken.  Tiie  first  part  of  the  rule  that 
difiicult.  And  if  the  intermixture  were  the  owner  can  follow  his  projierty  as 
such  as  to  destroy  the  property,  the  long  as  the  identity  of  the  original  ma- 
whole  loss  should  fall  on  him  whose  terial  can  be  shown,  and  take  it  without 
carelessness,  or  folly,  or  misfortune  cans-  remunerating  the  wrongdoer  for  his 
cd  the  destruction  of  the  whole."  See  trouble,  has  often  been  sanctioned.  Betts 
Colwill  V.  Eeeves,  2  Camp.  .575.  v.  Leo,  5  Johns.  349  ;  Curtis  v.  Groat,  6 
((j)  In  cases  where  a  party  has,  under  Id.  1G8;  Brown  v.  Sax,  7  Cowen,  95; 
a  contract  with  the  owner,  increased  the  Suydcr  v.  Vaux,  2  Rawle,  427;  Martin 
value  of  goods  by  his  labor  and  then  ?'.  Porter,  5  M.  &  W.  352  ;  Wood  v. 
converted  them  to  his  own  use,  the  value  Morewood,  3  Q.  B.  444,  in  notis.  As 
of  the  goods  before  the  labor  has  been  regards  the  first  part  of  the  rule,  no  dis- 
expcnded,  has  been  given  in  damages,  tinction  has  been  taken  in  any  of  the 
Dresser  Manuf.  Co.  v.  Waterston,  3  adjudications  between  a  case  where  the 
Mete.  9.  See  Green  u.  Farmer,  4  Burr,  wrongful  taking  was  fraudulent  and 
2214.  Butwhere  goods  have  been  wrong-  where  it  was  by  mistake.  But  as  regards 


476 


THE  LAW   OF   CONTRACTS. 


[part  II. 


There  are  strong  reasons,  and  authorities  of  much  weight, 
in  favor  of  the  doctrine  that  special  damages  may  be  recovered 
in  this  action,  that  is,  damages  in  addition  to  the  value  of 
the  goods,  for  losses  or  expenses  directly  and  naturally  re- 
sulting from  the  conversion  ;  but  it  would  seem  that  these 
special  damages  should  be  specially  alleged  in  the  declara- 
tion, (h) 

If  the  plaintiff  claims  the  property  converted  merely  by  a 
lien  to  secure  a  debt,  he  recovers  only  the  amount  of  the  debt, 
because  that  is  the  measure  of  his  interest,  if  the  defendant 
have  any  title  or  interest  at  all.  (t)     But  if  the  defendant  be 


the  second  part  of  the  rule,  in  the  late 
case  of  Silsbuy  v.  McCoon,  3  Comst. 
379,  a  majority  of  the  Court  of  Appeals 
overruled  two  previous  decisions  of  the 
Supreme  Court,  in  the  same  case,  report- 
ed in  6  Ilill,  425,  and  4  Denio,  332,  and 
decided,  after  a  very  able  argument  of 
the  case,  that  a  u-iflfd  wrongdoer  can 
acquire  no  property  in  the  goods  of 
another,  by  any  change  whatsoever 
wrought  in  them  by  his  labor  or  skill, 
provided  it  can  be  shown  that  the  im- 
proved article  was  made  from  the  ori- 
ginal material;  and  consequently  it  was 
held,  that  the  title  to  corn  was  not 
changed  by  its  conversion  into  whiskey. 
The  second  part  of  tlie  rule  in  the  Year 
Books  was  said  to  have  no  application  in 
the  case  of  a  iriUful  wrongdoer.  But 
where  the  improved  property  was  not 
changed  in  its  nature,  so  that  it  could 
be  reclaimed  by  the  original  owner  in 
all  cases^no  distinction  was  taken  be- 
tween tlic  rights  of  a  wrongdoer  who 
has  acted  with  a  fraudulent  purpose,  and 
one  who  has  acted  by  mistake.  Rugglcs, 
J.,  in  delivering  the  opinion  of  a  major- 
ity of  the  court,  said  ;  "  So  long  as  pro- 
perty wrongfully  taken  retains  its  orig- 
inal form  and  substance,  or  may  be 
reduced  to  its  original  materials,  it 
belongs,  according  to  the  admitted 
principles  of  the  common  law,  to  the 
original  owner,  without  reference  to  the 
degree  of  improvement,  or  the  additional 
value  given  to  it  by  the  lal)or  of  the 
wrongdoer.  Nay  more,  this  rule  holds 
good  against  an  innocent  purciiaser  from 
the  wrongdoer,  although  its  value  be 
increased  an  hundred  fold  by  tlie  labor 
of  tlie  ])urcbascr.  This  is  a  necessary 
consequence  of  the  continuance  of  tlie 
original  ownership."   But  this  rigid  rule 


has  been  questioned  and  the  opinion  ex- 
pressed in  the  text  approved  by  several 
authorities.  Brown  v.  Sax,  7  Cowen, 
95,  per  Sutherland,  J.,  Silsbuy  v.  Mc- 
Coon, 4  Denio,  332,  337,  per  Branson, 
J.  See  Benjamin  v.  Benjamin,  1  Conu. 
347,358. 

(/()  In  Suydam  v.  Jenkins,  3  Sandf. 
614,  627,  Diier,  J.,  said:  "  In  England 
the  law  may  be  considered  as  settled, 
that  additional  damages,  if  laid  in  the 
declaration,  and  directly  resulting  from 
the  wrongful  act  of  tlie  defendant,  are 
recoverable.  (Davis  v.  Oswell,  7  Car.  & 
P.  804;  Bodley  v.  Reynolds,  8  Q.  B. 
779  ;  llogers  v.  Spenee,  15  Law  Journal, 
N.  S.  52).  And  an  early  decision  to 
the  same  effect,  is  found  in  our  own  re- 
ports. (Shotwell  V.  Wendover,  1  Johns. 
65.)  It  is  true,  that  in  Brizee  v.  Maybee, 
(21  Wend.  144,)  Mr.  J.  Cowen,  speak- 
ing a^  the  organ  of  the  court,  seems  to 
have  held  that  under  no  circumstances 
ought  the  jury  to  be  permitted  to  find 
special  damages  in  the  action  of  trover ; 
and  the  Supreme  Court  of  Pennsylvania 
seems  to  have  given  its  sanction  to 
the  same  doctrine,  (Farmers'  Bank  v. 
Mackie,  2  Penn.  St.  11.318:)  but  .as  this 
doctrine,  literally  understood,  in  effect 
denies  the  right  of  tlie  plaintiff  to  a  full 
indemnity,  however  certain  the  evidence 
of  his  loss,  the  language  of  the  learned 
judges  ought  perhaps  to  be  construed 
as  only  meaning  special  damages  ought 
never  to  be  allowed,  where,  from  the 
nature  of  the  case,  the  estimate  must  be 
uncertain  and  conjectural ;  and  the  doc- 
trine thus  ex])laincd  and  limited,  we  are 
far  from  wishing  to  controvert." 

(0  Hays?'. Kiddle,  1  Sandf  248;  Spoor 
7'.  Bokkclin,  7  Cowen,  670  :  Spoor  v. 
Holland,  8  Wend.  445  ;  Llovd  v.  Good- 


en.  VII.]  DAMAGES.  477 

a  mere  stranger,  the  plaintiff  has  a  title  to  the  whole,  as 
against  him,  and  recovers  the  whole  value.  (J)  Where  a 
pledgee  tortiously  withholds  the  pledge,  or  has  sold  it,  with- 
out calling  on  the  pledgor  to  redeem,  and  the  pledgor  bring 
an  action  against  him,  the  pledgee  may  have  the  amount 
of  his  debt  deducted  or  recouped  in  the  assessment  of  dam- 
ages, (k) 

4.  In  the  Action  of  Replevin. 

By  the  action  of  replevin,  the  plaintiff,  having  taken  pro- 
perty which  he  calls  his  own,  seeks  to  establish  his  title  ; 
and  the  defendant,  denying  the  plaintiff's  title,  endeavors 
to  establish  his  own.  But,  incidental  to  these  questions  of 
title,  are  those  of  damages.  The  plaintiff  claims  compensa- 
tion for  the  wrong  done  to  him,  in  taking  his  goods  and  com- 
pelling him  to  resort  to  this  process  to  recover  them.  The 
defendant  claims  to  have  his  goods  back  again,  and  also 
damages  for  taking  them,  by  this  process.  (/)  We  should 
apply  here  the  same  principles  which  have  been  already  stated 
in  relation  to  trover;  each  party  may  claim  complete  com- 
pensation, and  no  more.  The  plaintiff  has  the  goods,  and  if 
he  succeeds  should  have  so  much  more  as  he  has  lost,  or  the 
defendant  has  gained,  or  might  well  have  gained,  by  the 
taking  and  detention  of  them.  If  the  defendant  succeed,  he 
should  have,  beside  his  payment  for  a  return,  damages  to 

win,  12  S.  &  M.  223;  Stron":  v.  Strong,  II.  4,  23,   that  he  who  hath  a  special 

6  Ala.  345 ;  Cameron  v.  Wjnch,  2  C.  property  in  goods,  shall  have  a  general 

&  R.  264.     In  Hickok  v.  Buck,  22  Vt.  action  of  trespass  against  him  who  hath 

149,  the  defendant  leased  to  the  plain-  the   general    property,    and    upon    the 

tiff  a  farm  for  one  year,  and  by  the  con-  evidence  damages  shall   bo  mitigated  ; 

tract   was   to   provide   a  horse  for  the  but  clearly  the  bailee,  or  he  who  liath  a 

plaintiff  to  use  upon  the  farm  for  that  special  property,   shall   have  a  general 

term.     He  furnished  the  horse,  but  took  action  of  trespass  against  a  stranger,  and 

him  away  and  sold  him  before  tlie  ex-  shall  recover  all  in  damages,   because 

piration  of  the  term,  without  providing  that  he   is   chargeable    over."      These 

another.     It  was  h(jld  that  the  plaintiff  remarks  apply  as  well  to  trover  as  to 

acquired  a  special  property  in  the  horse  trespass. 

and  was  entitled  to  recover  in  an  action  /;\    t      •         -o    i           irivr        cnn 

f.            ,               f     »i     1         <-»i  {i^)  Jarvis  V.  Kodgers,  15  Mass.  3S9 ; 

01  trover  damages  tor  the  loss  01  the  use  a>.  J          at      i     .  ^^     •     r.o- 

c  ^x      V.           i"  •       ^i           -1         c  ^\  btearns  f.  Marsh,  4  Demo,  22/. 

of  the  horse  during  the  residue  or  the  '               ' 

term.  (/)  Bruce  v.  Learned,  4  Mass.    G14, 

(y)  "White  i>.  Webb,   15  Conn.   302;  617,  per   Parsons,    Ch.  J.     If  the  jury 

Lyle  t'.  Barker,  5  Binney,  457  ;  Schley  find  the  property  to  be  part  in  the  plain- 

i'.  Lyon,  6' Geo.  530.     In  Ileydon  and  tiff,  and  part  not,  each  party  is  entitled 

Smith's  case,  13  Coke's  R.  67,  it  is  laid  to  damages  and  costs.     Powell  i'.  Ilins- 

down ;  "So  is  the  better  opinion  in  11  dale,  5  Mass.  343. 


478  THE  LAW  OF  CONTRACTS.'  [PART  II. 

cover  his  direct  loss  by  the  taking  and  detention.  (/«)  Which- 
ever party  establishes  his  property  in  the  goods,  has  also  a 
right  to  have  made  good  to  him  by  damages,  any  deterio- 
ration which  they  may  have  suffered  while  wrongfully  in 
the  hands  of  the  other  party,  (n)  This  rule,  however,  is 
subject  to  the  qualification,  that  a  plaintiff  in  replevin  who 
retains  the  articles  replevied  until  judgment  in  the  suit,  can- 
not claim  damages  for  any  depreciation  in  their  value,  during 
that  period  ;  because  he  might  sell  them  immediately  in 
such  a  manner  as  to  ascertain  their  value,  for  which  alone 
he  is  answerable  on  his  bond,  (o) 

It  has  been  held  that  an  action  on  the  replevin  bond  is 
defeated  by  the  destruction  of  the  property  in  the  hands  of 
the  plaintiff  in  replevin,  by  the  act  of  God,  before  the  judg- 
ment. {]))  But  this  decision  has  been  much  doubted,  on 
the  ground  that  if  one  takes  property  from  its  true  owner,  if  it 
be  destroyed  in  the  hands  of  the  taker,  it  should  be  regarded 
as  his  loss,  and  not  as  the  loss  of  the  owner,  (q)  Such 
would  doubtless  be  the  decision  if  the  same  defence  were 
attempted  against  an  action  of  trespass  or  trover. 

The  question  as  to  the  time  when  the  value  of  the  goods 
should  be  taken,  to  which  we  have  alluded  in  speaking  of 
trover,  may  also  arise  in  an  action  on  the  replevin  bond,  or  if 
the  defendant  prevails  in  the  original  suit ;  and  we  think  it 
must  be  governed  by  the  principles  we  have  already  stated 
as  applicable  to  that  action,  (r) 

In  an  action  upon  a  replevin  bond,  the  value  of  the  pro- 
perty, as  indorsed  upon  it,  is,  at  the  plaintiff's  election,  taken 
as  its  true  value,  (s) 

{m)  Rowley  v.  Gibbs,  14  Johns.  385  ;  71 ;  M'Caber.  Morehead,  1  W.  &  S.  516; 

Sec  supra,  note  (b).  Caldwell  v.  West,  1  N.  J.  411,  422. 

(;()  Rowley  v.  Gibbs,  14  Johns.  38,'5.  (s)  Middleton  v.   Bryan,  3  M.  &  S. 

(o)  Gordon  v.  Jcnney,  16  Mass.  465.  155;    Ilujrgeford  v.  Ford,  11  Pick.  223; 

(/j)  Carpenter r. Stevens,  12  Wend. 589.  Parker  r.  Simonds,  8  Mete.  205.     Inaa 

(</)  Suydam  r.  Jenkins,  3  Sandf.  614,  action  of  debt  on  a  replevin  bond,    the 

643,  per  Duer,  J.  original  plaintiH's  havini^  failed  in  tlicir 

(r)  Supra,  note  (b.)  The  valnc  of  the  action,  and  a  writ  of  restitution  having 
goods  at  tlie  time  of  the  service  of  tlic  been  issued,  by  virtue  of  wiiicli  the  de- 
writ  of  replevin,  with  interest  until  the  fendant  demanded  the  goods,  lie  was  held 
rendition  of  judgment,  is  held  to  be  the  entitled  to  the  value  of  the  goods  at  the 
ordinary  measure  of  damages  when  the  time  of  the  demand.  Swift  t-.  Barnes, 
defenilant  prevails.  Brizsee  y.  Maybce,  16  Pick.  194.  See  also  Howe  f.  Iland- 
21  Wend.  144  ;  Mattoon  v.  Pearee,  12  ley,  28  Maine,  241,  and  Suydam  v.  Jen- 
Mass.  406  ;  Barnes  v.  Bartlctt,  15  Pick,  kins,  3  Saudf.  614,  645,  per  Duer,  J. 


en.   VII.]  DAMAGES.  479 

If  the  writ,  in  replevin,  is  sued  out  maliciously,  it  has 
been  held  that  exemplary  damages  may  be  given  in  this  case, 
as  for  a  wanton  and  malicious  trespass,  (t)  .But  in  an 
action  on  a  replevin  bond,  it  is  said  that  counsel  fees,  or 
compensation  for  attendance  at  court  in  the  replevin  suit, 
cannot  be  recovered,  (u) 

If  one  of  the  parties  has  but  a  qualified  right  in  the 
property,  as  by  attachment  or  lien  to  secure  a  debt,  he  re- 
covers only  to  the  extent  of  that  lien  or  interest,  unless  the 
other  party  fails  to  make  out  any  rightful  title  or  interest 
whatever,  (y)  Nor  can  the  defendant  recover  the  value  of 
the  whole  property,  if,  after  the  action  commenced,  he  repos- 
sessed himself  of  a  part  of  it.  Although  the  plaintiff  is  non- 
suited in  an  action  of  replevin,  he  may  still  offer  testimony 
to  prove  ownership  of  the  property  in  himself,  upon  inquiry 
into  the  right  of  the  defendant's  possession,  for  the  purpose 
of  showing  that  the  defendant  has  sustained  no  substantial 
damage,  as  the  plaintiff  was  the  owner  of  the  property,  [iv) 
This  action  being,  as  it  is  said,  in  substitution  of  the  old 
action  de  bonis  asportatis,  must  be  governed,  at  least  in  this 
respect,  by  the  rules  of  that  action,  (x) 

5.    Where  a  Vendee  sues  a   Vendor. 

If  a  vendee,  to  whom  the  vendor  has  not  delivered  the 
articles  sold  agreeably  to  his  contract,  brings  an  action  for 
the  breach,  he  may  be  said  to  have  sustained  no  loss  unless 
the  articles  have  risen  in  value.  He  could  not  maintain  his 
action  without  tendering  the  price,  and  if  the  articles  would 
bring  no  more  than  this,  he  would  gain  nothing  if  they  were 
delivered    to    him,  and  loses  nothing   if  they  are  withheld. 

(t)  M'Donald  u.  Scaife,  11  Pcnn.  St.  than  the  amount  of  the  execution,   the 

381.     Brizsee  v.  Maybee,  21  Wend.  144  ;  rule  of  damages  is   tlic   amount  of  the 

Cable  u.  Uakin,  2   Id.  172;  M'Cabe  v.  execution  with  interest   thereon;  but  if 

Morehead,  1  W.  &  S.  516.  the  value  of  the  property  be  less  than 

(u)  Davis  v.  Crow,  7  Blaekf.  129.  the  amount  of  the  execution,   then  the 

(v.  Scrugham  ?;.    Carter,    12    Wend,  measure  of  damages  is  the  full  value  of 

1.31  ;  Lloyd  v.  Goodwin,  1 2  S.  &  IM.  223.  the  property. 

In  Jennings  v.  Johnson,  17  Ohio,  154.  it  ^^^^  n^rmoM   v.  Goodrich,  1   Greene, 

was  held  that   if  property  be  replevied  ^^^J^^  jg      g^^  ^^^^  Wallace  r.  Clark, 

from  asheriffholdingit  underexecution,  7  j^j^^kf  ogs 
and  the  issue  be  found  for  the  defendant, 

if  the  value   of  the  property  be  greater  (x)  De  Witt  r.  Morris,  13  Wend.  496. 


480  THE  LAW  OF  CONTRACTS.  [PART  II. 

But  although  they  may  have  gained  nothing  in  value  up  to 
the  time  when  they  should  have  been  delivered,  they  may  have 
gained  greatly  since,  and  it  is  precisely  for  the  loss  of  this 
gain  that  the  vendee  demands  compensation.  A  distinction 
is  made  here,  by  some  authorities,  which  does  not  appear  to 
us  to  rest  upon  perfectly  satisfactory  and  conclusive  reasons. 
It  is  said  that  if  the  vendee  bought  on  credit,  the  value  of 
the  goods  at  the  time  of  the  purchase,  or  at  the  time  when 
delivery  was  due,  should  be  taken  as  the  measure  of  dam- 
ages. But  if  he  paid  the  price  down,  or  in  advance,  then  he 
is  entitled  not  only  to  their  increase  in  value  at  the  time  he 
brings  his  action,  but  to  any  increase  which  may  have  taken 
place  at  any  intermediate  period  between  the  purchase  and 
the  action,  even  if  the  value  had  fallen  again  before  the 
action.  (//)  But  if  compensation  is  to  be  the  measure,  it 
would  be  difficult  to  find  a  very  good  reason  for  this  dif- 
ference. It  may  indeed  be  said,  that  one  who  buys  not  only 
on  credit,  but  without  any  definite  period  of  payment,  and 
who  acquires  a  right  to  the  goods  only  by  tendering  the 
price,  and  makes  this  tender  only  when  he  brings  the  action, 
necessarily  fixes  that  time  as  the  time  of  the  purchase,  of  the 
delivery,  and  of  the  standard  of  value,  (z)  But  if  one  buys 
to-day,  the  goods  to  be  delivered  to-day,  and  the  price  is  to 
be  paid  in  three  months,  and  the  goods  are  withheld  without 
suflicient  cause,  there  does   not  seem  to  be  any  clear  and 

(jy)  Shepherd  v.  Hampton,  3  Wheat.  Davis  v.  Shields, 24  Ward,  322.  In  suits 
200;  Marshal, C.  J.:  "The only  question  on  bonds  for  the  replacement  of  stock, 
is,  whether  tlie*  price  of  the  article  at  the  the  higher  value  thereof  on  the  day  of 
time  of  the  breach  of  the  contract,  or  at  trial  has  been  allowed  as  the  measure  of 
any  subsequent  time  before  suit  brought,  damages.  Shepherd  v.  Johnson,  2  East, 
constitutes  the  proper  rule  of  damages  211;  McArthur  i'.  Seaforth,  2  Taunt.  2.")7; 
in  this  case.  The  unanimous  opinion  Harrison  t'.  Harrison,  1 C.  &  P.  025  :  Don- 
of  the  court  is,  that  the  price  of  the  ar-  ner  r.  Back,  1  Stark.  254.  See  Tempest  v. 
tide  at  the  time  it  was  to  be  delivered,  Kilmer,  3  C.B.249.  But  the  authority  of 
is  the  measure  of  damages.  For  my-  these  cases  in  this  country  is  very  doubt- 
self  only,  I  can  say  that  I  should  not  ful ;  Wells  v.  Abernethy,  5  Conn.  227, 
think  the  will  would  apply  to  a  case  ])cr  Ilosmer,  C.J. ;  Gray  r.  The  Portland 
where  advances  of  money  had  been  Bank,  3  ]\Iass.  390;  Suydam  r.  Jenkins, 
made  by  tlie  purchaser  under  tlic  con-  3  Sandf.  632-636.  They  have,  however, 
tract."  This  distinction  was  adopted  in  been  recently  approved  in  Connecticut. 
Clark  V.  Pinney,  7  Cowen,  081,  witli  the  AVcst  r.  Pritchard,  19  Conn.  212.  Sec 
qualiticatlon  that  in  order  to  recover  the  Com.  Bank  of  Buffalo,  22  Wend.  348  ; 
highest  price  between  the  period  for  dc-  Wilson  v.  Little,  2  Comst.  443. 
livery  and  the  dav  of  trial,  the  suit  must 
be  brought  witlnn  a  reasonable  time.        {:)  Suydam  v.  Jenkins,  3  Sandf.  639. 


CH.  VII.] 


DAMAGES. 


481 


convincing  reason  for  giving  him  a  compensation  difi'ercnt 
from  that  to  which  he  would  be  entitled  as  damages,  if  he 
paid  the  price  down,  (a)  We  have  considered  a  similar 
question, —  as  to  the  time  when  the  value  of  property  is  to 
be  taken,  —  repeatedly,  because  diflerent  principles  have  been 
applied  to  it  in  different  actions.  But  we  doubt  if  this  be 
wise  or  just.  If  we  adhere  to  the  simple  rule  of  compensa- 
tion, we  should  say,  that  in  every  action  to  recover  damages 
for  the  wrongful  detention  of  personal  property,  tfie  plaintiff 
should  recover  full  compensation  for  the  loss  of  all  that  he 
might  fairly  have  gained  during  the  whole  period  of  the 
defendant  s  misappropriation  ;  and  the  defendant  should  be 
supposed  to  have  made  his  wrongful  act  as  profitable  to  him- 
self as  the  market  at  any  time  permitted,  —  excepting,  per- 
haps, accidental  and  momentary  inflations  —  and  should  be 
compelled  to  give  over  this  profit  to  the  plaintiff.  And  it  will 
be  seen  in  our  notes,  that  we  have  recent  authority  for  this 
general  rule,  (b) 


(a)  Tins  ilistinctionhas,in  some  cases, 
been  ovcrruletl,  and  the  value  of  the 
property  at  the  time  and  place  of  the 
promised  delivery  taken  as  the  measure 
of  damages,  without  reference  to  the  pre- 
vious payment  of  the  consideration. 
Smethurst  l:  Woolston,  5  W.  &  S.  106  ; 
Smith  r.  Dunlap,  12  Illinois,  184;  Bush 
V.  Canfield,  2  Conn.  485*;  Wells  v.  Aber- 
nethy,  5  Id.  222  ;  Vance  v.  Journe,  13 
Low.  225  ;  Sargent  v.  The  Franklin  Ins. 
Co.  8  Pick.  90 ;  Startup  v.  Cortuzzi,  1  C. 
M.  &  R.  165.  Where  the  price  has  not 
been  paid  by  the  vendee,  the  authorities 
generally  agree  ;  some  of  them  not  no- 
ticing the  distinction  we  have  mentioned, 
that  the  difference  between  the  market 
value  of  the  goods  at  the  time  of  the 
promised  delivery,  and  the  contract  price, 
is  the  measure  of  diimages.  Leigh  v. 
Patterson,  8  Taunt.  540 ;  Gainsford  v. 
Carroll,  2  B.  &  C.  624  ;  Boorman  v. 
Nash,  9  Id.  145  ;  Shaw  v.  Holland,  15  M. 
&  W.  136;  Douglass  v.  McAllister,  3 
Cranch,  S.  C.  298;  S.  C.  1  Cranch,  C.  C. 
241  ;  Gilpin  v.  Consequa,  Peters,  C.  C. 
85  ;  Day  v.  Dox,  9  Wend.  129  ;  Bealsi;. 
Terry,  2  Sandf.  127  ;  Shaw  v.  Nudd,  8 
Pick.  9;  Swift  r.  Barnes,  10  Id.  194; 
Smith  r.  Berry,  18  Maine,  122  ;  March- 
hessean  v.  Chaffee,  4  La.  Ann.  R.  24. 
There  are  cases  which  hold  that  in  trover 
the  highest  value  of  the  goods  at  any 


intermediate  period  between  the  con- 
version and  the  trial  is  the  measure  of 
damages.  West  v.  Wentworth,  3  Cowen, 
82  ;  Greening  v.  Wilkinson,  1  C.  &  P. 
412.  See  Fisher  v.  Prince,  3  Burr.  1363; 
Whitten  v.  Fuller,  2  Bl.  902.  In  detinue, 
for  railway  scrip,  the  measure  of  damages 
was  held  to  be  the  difference  between  its 
value  when  demanded  and  its  deprecia- 
ted value  when  delivered  up.  Williams 
r.  Archer,  5  C.  B.  318  ;  S.  C.  2  C.  &  K. 
26  ;  Tempest  v.  Kulmor.  3  C.  B.  249.  See 
Com.  Bank  of  Buffalo,'22  Wend.  348; 
Wilson  V.  Little,  2  Comst.  443. 

(h)  Snydam  v.  Jenkins,  3  Sandf.  614. 
See  sujira,  note  (h.)  Dunlap  v.  Hig- 
gins,  1  House  of  Lords  Cas.  381,403, 
12  Jur.  295.  Lord  Chancellor  Cotten- 
ham  :  "  Suppose,  for  instance,  a  party 
who  has  agreed  to  purchase  2,000  tons  of 
pig  iron,  on  a  particular  day,  has  himself 
entered  into  a  contract  with  somebody 
else,  condition  for  tlie  supply  of  2,000 
tons  of  pig  iron,  to  be  delivered  on  that 
day,  and  that  he,  not  being  able  to 
obtain  those  2,000  tons  of  pig  iron  on 
that  particular  day,  loses  the  benefit 
arising  from  that  contract.  If  pig  iron 
had  only  risen  a  shilling  a  ton  m  the 
market,  but  the  pursuers  had  lost  1,000/. 
npon  a  contract  with  a  railway  com- 1 
])any,  in  my  opitiion  they  ought  not 
only    to    recover    the    damage    which 


VOL.    II. 


41 


482 


TUE   LAW   OF   CONTRACTS. 


[part  II. 


In  determining  what  is  the  market  value  of  property  at 
any  particular  time,  the  jury  may  sometimes  take  a  wide 
range ;  for  this  is  not  always  ascertainable  by  precise  facts, 
but  must  sometimes  rest  on  opinion ;  (c)  and  it  would  seem 
that  neither  party  ought  to  gain  or  to  lose  by  a  mere  fancy 
price,  or  an  inllated  and  accidental  value  suddenly  put  in 
force  by  some  speculative  movement,  and  as  suddenly  pass- 
ing away.  ((/)  The  question  of  measurement  of  damages  by 
a  market  value  is  peculiarly  one  for  the  jury.  But  a  court 
would  not  willingly  permit  them  to  take  any  extreme  of 
valuation,  whether  high  or  low,  which  contradicted  existing 
facts,  and  rested  only  on  a  merely  speculative  opinion  of  a 
future  want  or  excess.  The  plaintiff  should  not  be  permitted 
to  make  a  profit  by  the  breach  of  his  contract,  which  he  could 
not  have  naturally  expected  to  make  by  its  performance  ; 
nor  should  he  be  subjected  to  a  loss,  and  the  defendant  be 
permitted  to  make  a  saving,  on  a  merely  speculative  possi- 
bility. The  inquiry  always  should  be,  what  was  the  value 
of  the  thing  at  that  time,  taking  into  consideration  all  proved 
facts  of  price  and  sale,  and  all  rational  and  distinct  probabi- 
lities, and  nothing  more,  (e) 


would  have  arisen  if  1  hey  had  gone  into 
the  market  and  bought  the  pig  iron  at 
that  increased  price,  but  also  tliat  profit 
which  ■would  liavc  been  received  if  the 
party  had  i)eifornied  his  contract.  No 
otlicr  rule  is  reconcilable  with  justice,  nor 
with  the  duty  which  tliejury  had  toper- 
form — that  of  deciding  the  amount  of 
damage  which  the  party  liad  sufl'ercd  by 
the  breach  of  his  contract."  But  in  tro- 
ver, for  goods  sold,  itwashcldin  Massa- 
chusetts tliat  tlieruleof  damages  is  tlieir 
value  at  the  time  of  the  conversion, 
notwithstanding  the  vendor  has  resold 
them  at  an  advanced  \)v\cti  before  the 
trial;  Kennedy  r.  Wiiitwell,  4  rick.4G6; 
See  Hanna  v.  Ilarter,  2  Pike,  (Ark.) 
397,  wliere  in  an  action  against  a  vendor 
for  refusing  to  complete  a  contract  of 
sale,  it  was  lield  that  tlie  sum  at  which 
he  resold  tlie  article  docs  not  establish 
its  market  value. 

(r)  .Joy  V.  Hopkins,  5  Dcnio,  84. 

('/)  Younger  v.  Givcns,  6  Dana,  1. 

{e)  IJiyn.lenburgh  v.  Welsh,   1  Bald- 
twin,  3.'?l",  340.   Per  Ilopkiiison,  J  :  "  It  is 
the  juice  —  the  marLet  ]>rice  of  the  arti- 
cle tliut  is   to   furnish   the   measure  of 


daniiiges.  Now  what  is  the  price  of  a 
tiling,  particularly  the  market  price  ? 
We  consider  it  {o  be  the  value  —  tlic  rate 
at  which  the  thing  is  sold.  To  make  a 
market,  tliere  must  be  I)uying  and  sell- 
ing, purchase  and  sale.  If  tlic  owner  of  an 
article  holds  it  at  a  price  wliicli  nobody 
will  give  for  it,  can  that  be  said  to  be  its 
market  value  ?  Men  sometimes  put  fan- 
tastical prices  upon  their  property.  For 
reasons  personal  and  jiccnliar,  they  rate 
it  much  above  what  any  one  would  give 
for  it.  Is  that  its  value  ?  Further,  the 
holders  of  an  article,  as  ilour,  for  in- 
staticc,  under  a  false  rumor,  which  if 
true  would  augment  its  value,  may  sus- 
jieiid  their  sales  and  put  a  i)ricc  upon  it, 
not  according  to  its  value  in  the  actual 
state  of  the  market,  or  tiie  actual  cir- 
cumstances which  aiicct  the  market,  but 
according  to  what,  in  their  ojiinion, 
will  be  its  market  jirice  or  value,  ])ro- 
vided  tlie  rumor  shall  ])rove  to  be  true. 
In  such  a  case,  it  is  clear  tliat  the  ask- 
ing price  is  not  the  worth  of  the  thing 
on  the  given  day,  but  what  it  is  sup- 
posed it  will  be  worth  on  a  future  day, 
if  the  contingency  shall  happen  which 


CU.  VII.] 


DAMAGES. 


483 


If  the  vendee  objects  that  the  articles  are  not  such  as  he 
bargained  for,  he  may  rescind  the  contract  as  a  whole,  but 
as  we  have  seen,  not  as  to  a  part.  If,  therefore,  he  has  re- 
ceived a  part  of  the  goods,  he  cannot  retain  them  and  have 
damages  on  the  non-delivery  of  the  whole  ;  nor  can  he  require 
the  delivery  of  the  residue,  after  he  has  ascertained  their 
quality,  and  then  have  his  claim  for  damages.  (/) 

•  6.   Where  a  Vendor  sues  a  Vendee. 

If  a  vendor  sues  the  vendee,  he  demands,  by  way  of 
damages,  the  price  the  vendee  should  have  paid.  Usually 
this  is  fixed  by  the  parties  ;  if  not,  it  may  be  fixed  by  subse- 
quent facts,  as  by  a  bond  fide  sale  by  the  vendee,  [g)  If 
not,  then  a  fair  price  must  be  given,  as  ascertained  by  testi- 
mony. If  the  goods  remain  in  the  vendor's  hands,  it  may  be 
said  that  now  all  his  damage  is  the  difference  between  their 
value  and  the  price  to  be  paid  ;  which  may  be  nothing. 
This  would  be  true  if  the  vendor  chose  to  consider  the  articles 
as  his  own,  or  if  the  law  obliged  him  to  consider  them  as  his 


is  to  give  it  this  fidditional  value.  To 
take  such  a  price  as  a  rule  of  damages 
is  to  make  a  defendant  pay  what  never 
in  truth  was  the  value  of  the  article,  and 
to  give  the  plaintiff  a  profit,  by  a  breach 
of  the  contract,  which  he  never  could 
have  made  by  its  performance."  See 
Smith  V.  Griffith,  3  Hill,  ;?.33  ;  Younger 
V.  Givcns,  6  Dana,  1.  Evidence  of  value 
at  places  in  the  vicinity  of  the  place  of 
delivery  may  he  admitted  to  show  the 
value  at  that  place.  But  where  the  evi- 
dence is  clear  and  explicit  as  to  the 
value  at  that  place,  such  value  must 
control,  no  matter  what  the  value  is  at 
other  places.  Gregory  v.  McDowell,  8 
Wend.  435. 

(/)  Sliields  V.  Pettec,  2  Sandf.  262. 
Tlie  defendants  purchased  of  the  ]ilain- 
tiffs  one  hundred  and  fifty  tons  of  pig 
iron,  No.  1,  to  arrive  in  the  ship  Sid- 
dons.  The  iron  wliichi  arrived  was  not 
of  that  quality,  and  for  that  reason  tlic 
defendants,  after  receiving  a  part,  refus- 
ed to  receive  the  remainder,  or  pay  the 
contract  price  for  the  part  already  re- 
ceived. In  the  meantime  the  market 
price  had  risen,  so  that  iron  of  the  quali- 
ty delivered  was  wortti  two  or  three  dol- 
lars i)er  ton  more  than  the  contract 
price.     This  action  was  brought  for  the 


value  of  the  iron  delivered.  Oal^leij,  C. 
J.,  said  :  "  Assuming  the  contract  to  be 
obligatory,  the  defendants,  on  finding 
the  iron  they  were  receiving  was  not 
No  1,  were  at  liberty  to  continue  to  re- 
ceive it  as  a  fulfilment  of  their  purchase, 
or  they  could  have  repudiated  the  deliv- 
ery and  brought  their  action  for  dama- 
ges. But  they  could  not  do  both.  They 
had  no  right  to  receive  a  part  of  the 
goods,  retain  such  part,  and  refuse  to 
receive  the  residue."  Accordingly  it 
was  held  that  the  defendants  could  not 
recoup  damages  for  the  non-fulfilment 
of  the  contract  liy  the  plaintifi's,  but  that 
they  were  bound  to  pay  the  market 
price  of  the  iron  delivered. 

(7)  In  Greene  v.  Bateman,  2  Wood 
&  M.  359,  there  was  sncli  a  misunder- 
standing as  to  the  price  that  no  express 
contract  could  be  proved.  But  the 
vendee  havhig  offered  to  return  the 
goods,  and  the  offer  having  been  de- 
clined, sold  them.  It  was  held,  in  an 
action  of  assumpsit,  that  he  must  be 
treated  as  the  trustee  of  the  vendor,  sell- 
ing on  his  account  and  for  his  benefit, 
and  liable  to  the  vendor  for  the  price 
received,  deducting  compensation  for 
his  services. 


484 


THE   LAW   OP   CONTRACTS. 


[part  II. 


own.  (h)  But  it  does  not  seem  that  the  law  lays  upon  him 
any  such  obligation.  He  may  consider  them  as  his  own,  if 
there  has  been  no  delivery ;  or  he  may  consider  them  as  the 
vendee's,  and  sell  them,  with  due  precaution,  to  satisfy  his 
lien  on  them  for  the  price,  and  then  he  may  sue  and  recover 
only  for  the  unpaid  balance  of  the  price  ;  or  he  may  consider 
them  as  the  property  of  the  vendee,  subject  to  his  call  or  or- 
der, and  then  he  recovers  the  whole  of  the  price  which  the 
vendee  should  pay.  (i)  As  the  action,  in  either  case,  pro- 
ceeds upon  the  breach  of  the  contract  by  the  vendee,  it  seems 
reasonable  that  this  election  should  be  given  to  the  vendor, 
and  no  part  of  it  to  the  vendee.  But  if  the  vendor  has  not 
the  goods  himself,  but  contracts  with  a  third  party  for  them, 
it  is  said,  (but  not,  as  we  think,  for  good  reasons,)  that  he 
now  recovers  only  the  difference  between  the  market  value 
and  the  contract  price.     But  if  his  contract  to  buy  was  abso- 


(h)  Stanton  v.  Small,  3  Samlf.  230 ; 
McNaiifxhter  v.  Cassaly,  4  McLean, 
530;  Whitmoi-e  v.  Coats,  14  Mis.  9; 
Thomiisou  r.  Alger,  12  Mete.  428  ;  Gi- 
rardr.  Taggart,  5  S.  &  K.  19.  In  Allen 
V.  Jarvis,  20  Conn.  38,  the  defendant 
contracted  -with  the  plaintiff  to  manii- 
faetiire  a  number  of  surgical  instru- 
ments, of  wliich  the  defendant  was  pa- 
tentee. After  they  were  finished,  the 
defendant  i-efused  to  accept  them.  The 
plaintiff  recovered  the  full  price  agreed 
upon,  on  the  ground  that  the  instru- 
ments were  of  no  value  to  him.  Storrs, 
J.,  said  :  "  The  rule  of  damages,  in  an 
action  for  the  non-acceptance  of  prop- 
erty sold  or  contracted  for,  is  the 
amount  of  actual  injury  sustained  by 
the  plaintiff,  in  consequence  of  such 
non-acceptance.  Tiiis  is  ordinarily  the 
difference  between  the  price  agreed  to 
be  paid  for  it,  and  its  value,  where  such 
price  exceeds  the  value.  If  it  is  wortli 
that  jirice  the  damages  arc  only  nomi- 
nal. But  tliere  may  be  cases  where  tlio 
])roperty  is  utterly  worthless  in  the 
iiands  of  the  plaintiff,  and  there  the 
whole  jirice  agreed  to  be  i)aid  should  be 
recovered.  The  jtre.sent  appears  to  us 
to  be  a  case  of  tliis  description.  The 
articles  contracted  fur  were  those  for 
the  exclusive  right  of  making  and  vend- 
ing which  the  defencbint  has  obtained  a 
patent.  They  could  not  be  lawfully 
sod  by  the  plaintiffs,  and  were,  there- 
fore  worthless   to    them."'     Where   the 


vendee  gives  notice  before  the  day  of 
delivery  that  he  will  not  accept  the 
goods,  the  measure  of  damages  in  an 
action  against  him  by  the  vendor,  is 
still  the  difference  between  the  contract 
price  and  the  market  price,  when  they 
should  have  been  delivered,  and  he  can- 
not have  them  assessed  at  the  market 
value  of  the  goods  at  the  time  when  the 
notice  was  given.  Philpotts  v.  Evans,  5 
M.  &  W.  475. 

((■)  Sands  v.  Taylor,  5  Johns.  395; 
Langfort  v.  Tiler,  "l  Salk.  113,  6  Mod. 
162;  Jones  v.  Uavsh,  22  Vt.  144;  Wil- 
son ;\  Broom,  G  La.  Ann.  R.381  ;  Gaskell 
V.  Morris,  7  W.  &  S.  33  ;  Boorman  v. 
Nash,  9  B.  &  C  145.  In  Sands  v.  Taylor, 
the  defendants  jmrchased  of  the  i)lain- 
tiffs  a  cargo  of  wheat.  After  accepting 
a  part  they  refused  to  accept  the  re- 
mainder. After  giving  notice  to  the 
defendants  the  plaintitls  sold  the  wheat 
in  their  bands  at  auction.  ]'(in  Xiss,  J., 
said  :  "  Nothing,  therefore,  is  more  rea- 
sonable, than  that  the  ])laintiffs,  who  were 
not  I)Ound  to  store  or  jjurchase  the  wheat, 
should  lie  permhted  to  sell  it,  at  the 
best  pri<;c  that  could  be  obtaineil.  The 
defendants  have  no  right  to  complain. 
Had  they  taken  the  wheat,  as  they  ought 
to  have  done,  a  sale  by  tlio  plaintiffs 
would  not  have  been  necessary.  The 
recovery  here  is  only  for  the  difference 
between  the  net  proceeds  of  that  sale,  and 
the  price  agreeil  u]>on  in  the  original  con- 
tract."   Bemcnt  v.  Smith,  1 5  Wend.  493 ; 


en.  VII.] 


DAMAGES. 


485 


lute  and  obligatory,  and  he  had  the  goods  in  liis  control,  so 
that  his  vendee  might  have  them  on  demand,  it  might  not 
be  easy  to  discriminate  this  case  from  the  other,  on  princi- 
ple. U) 

If  the  goods  are  sold  on  credit,  that  is,  if  it  is  a  part  of  the 
contract  of  sale,  that  payment  shall  be  made  at  a  future  day, 
there  can,  of  course,  be  no  suit  for  the  price  until  that  day. 
But  i^  it  is  also  a  part  of  the  contract  that  a  note  or  bill  of 
exch^igc  shall  be  given  immediately,  which  is  to  be  payable 
on  that  future  day,  if  this  be  not  given  an   action  can  at 


Graham  v.  Jackson,  14  East,  498.  In 
Bement  i'.  Smith,  the  phaintitt"  huilt  a 
carriage  for  the  defendant,  according  to 
an  agreement,  tendered  it  to  him,  and  on 
his  refusal  to  accept  it,  deposited  it  with 
a  third  jierson  on  his  account,  giving 
the  defendant  notice  of  the  deposit,  and 
brought  an  action  of  at-sumjisit.  It  was 
hekl  that  the  phaintitf  was  entith'd  to 
recover  tiie  price  agreed  upon.  But  in 
Laird  v.  Pini,  7  M.  &  W.  474,  478, 
Parke,  B.,  said:  "A  party  cannot  re- 
cover the  full  vahie  of  a  chattel,  unless 
under  circumstances  which  import  that 
the  property  has  passed  to  the  defendant, 
as  in  the  case  of  goods  sold  and  delivered, 
where  they  have  been  absolutely  parted 
•with,  and  cannot  be  sold  again."  See 
also  Dunlop  v.  Grote,  2  C.  &  K.  153; 
Thompson  v.  Alger,  12  Mete.  428,  443. 
In  this  last  case,  the  contract  was  for 
the  purchase  of  railroad  shares,  and  they 
had  already  been  transferred  to  the  ven- 
dee, on  the  books  of  the  company,  and 
he  refused,  after  the  transfer,  to  receive 
them  ;  the  vendor  was  held  entitled  to  re- 
cover the  contract  price ;  hut  the  court 
were  of  opinion  that  if  the  refusal  had 
preceded  the  transfer,  the  difference  be- 
tween the  agreed  price  and  the  market 
value  on  the  day  of  delivery  would  have 
been  the  measure  of  damages.  Thomp- 
son V.  Alger,  12  Met.  428.  Dewey,  J. : 
"  The  plaintiff  is  entitled  to  recover  tlie 
whole  amount  stipulated  to  be  paid  for 
the  stock.  The  argument  against  such 
recovery  is,  that  this  stock  was  never 
accepted  by  the  defendant ;  that  this,  at 
most,  was  a  mere  contract  to  purchase; 
and  that  the  defendant,  having  repudiat- 
ed it,  is  only  liable  to  pay  the  difference 
between  the  agreed  price  and  the  market 
value  of  the  stock  on  the  day  of  the  de- 
livery. Such  would  be  the  general  rule 
as  to  contracts  for  the  sale  of  personal 

41* 


property ;  and  such  rule  would  dp  entire 
justice  to  the  vendor.  lie  would  retain 
the  property  as  fully  in  his  hands  as  be- 
fore, and  a  payment  of  the  difference 
between  the  market  price  and  that  stip- 
ulated would  fully  indemnify  him.  Such 
would  iiave  been  the  rule  in  this  case, 
if  nothing  had  been  done  to  change  the 
relations  of  the  parties.  If,  for  instance, 
the  defendant  had  repudiated  the  eon- 
tract,  before  any  transfer  of  stock  to 
him  liad  been  made  on  the  books  of  the 
corporation,  it  might  properly  have  ap- 
plied here.  But  this  is  a  case  of  some- 
what peculiar  character,  in  this  respect. 
The  contract  of  the  vendor  to  sell  to  the 
defendant  one  hundred  and  eighty  shares 
of  railroad  stock  required  a  previous 
transfer  of  the  shares  on  the  books  of 
the  corporation.  This,  from  the  very 
nature  of  the  case,  was  a  previous  act ; 
and  when  done,  it  passed  the  property 
on  the  books  of  the  company  to  the 
defendant." 

(j)  For  this  distinction  see  Sedgwick 
on  Damages,  p.  283,  citing  Stanton  v. 
Small,  3  Sandf.  230;  McNaughten  v. 
Casally,  4  McLean,  531.  But  we  think 
this  distinction  is  Avithout  foundation. 
The  circumstance,  in  the  first  case,  that 
the  goods  were  not  in  the  possession  of 
the  vendor,  but  only  contracted  for,  was 
not  alluded  to  by  the  court  in  assessing 
damages.  The  plaintiff  only  claimed 
what  the  court  allowed.  The  cases  seem 
to  show  that  a  vendor  may,  on  default 
of  vendee,  not  only  elect  to  i-e-sell  and 
charge  the  vendee  for  the  loss  on  the  re- 
sale, or  sue  for  the  contract  price  con- 
sidering the  goods  as  the  vendee's ;  but 
may  also  elect  to  consider  them  as  his 
own,  the  contract  being  rescinded,  and 
sue  for  the  special  damage,  i.  e.,  the  dif- 
ference between  the  market  value  and 
the  agreed  price. 


48i5 


THE   LAW   OF   CONTRACTS. 


[part  II. 


once  be  maintained  for  it ;  not  only  because  it  is  a  separate 
promise,  but  because,  by  the  practice  of  merchants,  this  note 
or  bill  might  be  made,  by  the  vendor's  getting  it  discounted, 
the  means  of  present  payment,  (k) 

If  the  sale  was  with  warranty,  and  an  action  is  brought  on 
a  breach  of  the  warranty,  if  the  vendee  may  not  rescind  the 
contract  and  return  the  goods, —  a  question  we  have  consid- 
ered elsewhere  (/)  —  he  can  have  no  other  compensation 
than  that  which  would  make  up  the  difference  between^vhat 
the  goods  are  and  what  they  ought  to  be.  Nor  is  the  price 
paid  for  the  article  any  thing  more  than  primd  facie  evidence 
of  the  value  which  it  should  have  had,  if  it  is  ever  so  much. 
The  jury  cannot  assume  that  the  warrantor  only  agreed  that 
the  thing  purchased  should  be  worth  what  was  given  for  it, 
because  the  purchaser  may  have  been  induced  by  the  low 
price  to  make  the  purchase.  He  has  a  right  to  have  just 
such  goods  as  the  vendor  agreed  to  sell,  and  compensation 
for  the  whole  difference  by  which  they  fall  short  of  this,  with- 
out reference  to  the  price  paid  for  the  goods.  (???)     He  may 


(Ic)  Hanna  r.  Mills,  21  Wend.  90 ; 
Rinchart  v.  Olwine,  5  W.  &  S.  157; 
Hutchinson  v.  Rcid,  3  Camp.  329.  Sec 
also  Musscn  v.  Price,  4  East,  147  ;  Diit- 
ton  V.  Solomonson,  3  B.  &  P.  582.  In 
the  action  for  not  givinpj  the  note,  the 
measure  of  damages  is  the  full  price  of 
the  goods.  Hanna  v.  Mills;  Rinchart 
V.  Ohvine. 

[1)  Vol.  l,p.  474. 

(?«)  Clare  v.  Maynard,  7  C.  &  P.  741, 
6  A.  «Sb  E.  519,  note;  Curtis  v.  Ilannay, 
3  Esp.  82 ;  Woodward  v.  Thachcr,  21 
Vt.  580;  Worthy  v.  Patterson,  2  Ala. 
172  ;  Slaughter  v.  McRae,  3  La.  Ann.  11. 
453;  Thornton  v.  Tliompson,  4  (Jrattan, 
121;  Voorhecs  v.  Earl,  2  Hill,  288; 
Freeman  r.  Clute,  3  Barb.  424  ;  Com- 
stock  V.  Hutchinson,  10  Id.  211.  In 
Gary  v.  Gruman,  4  Hill,  G25,  the  action 
Avas  for  a  breach  of  a  warranty,  in  the 
sale  of  a  horse.  The  measure  of  dam- 
ages was  held  to  be  the  difference  be- 
tween what  would  have  been  its  value 
as  a  sound  horse  and  its  value  with  the 
defects.  Coicen,  J.,  said,  "  The  rule  un- 
doubtedly is,  that  the  agreed  price  is 
strong  evidence  of  the  actual  value;  and 
this  should  never  be  departed  from,  un- 
less it  be  clear  that  such  value  was  more 


or  less  than  the  sum  at  which  the  parties 
fixed  it.  It  is  sometimes  the  value  of 
the  article  as  between  them,  rather  than 
its  general  worth,  that  is  primarily  to  be 
looked  to  ;  a  value  which  very  likely  de- 
pended on  considerations  which  they 
alone  could  appreciate.  Tilings  are, 
however,  very  often  purchased  on  ac- 
count of  their  cheapness.  In  the  common 
language  of  vendors,  they  are  offered  at 
a  great  bargain,  and  when  taken  at  that 
offer  on  a  warranty,  it  would  be  con- 
trary to  the  express  intention  of  the 
parties,  and  perhaps  defeat  this  warranty 
altogether,  should  the  price  be  made 
the  inflexible  standard  of  value.  A  man 
sells  a  bin  of  wheat  at  fifty  cents  per 
bushel,  warranted  to  be  of  good  (ptality. 
It  is  worth  one  dollar  if  the  warranty  be 
true;  but  it  turns  out  to  be  so  foul  that 
it  is  worth  no  more  than  seventy-five 
cents  per  bushel.  The  purchaser  is  as 
much  entitled  to  his  twenty-five  cents 
per  bushel  in  damages  as  he  would  have 
been  by  paying  his  dollar,  or  if  he  had 
given  two  dollars  per  bushel  he  could 
recover  no  more."  The  measure  of 
damages  was  once  held  to  be  the  dif- 
ference between  the  price  ))aid  and  the 
value  of  the  article  Avith  defects.  Caswell 


CH.  VII.]  DAMAGES.  487 

also  recover  for  the  consequential  injury  he  has  sustained  by 
reason  of  the  breach  of  warranty,  if  it  were  the  immediate, 
direct  and  natural  consequence,  but  not  otherwise,  (w)  Thus, 
if  goods  are  warranted  fit  for  a  particular  purpose,  the  pur- 
chaser is  entitled  to  recover,  in  liis  action  for  breach  of  the 
warranty,  what  they  would  have  been  worth  to  him  if  they 
had  conformed  to  the  warranty,  (o) 

7.   Whether  Expenses  mcuj  he  included  in  Damages, 

A  question  sometimes  occurs  in  these  cases,  and  also  in 
many  other  actions  where  damages  are  demanded,  as  we 
have  already  intimated,  which  cannot  always  be  answered 
by  direct  and  unquestioned  authority.  It  is,  whether  the  plain- 
tiff may  include  in  his  damages  the  expenses  of  litigation. 
Thus,  if  one  sells  a  horse  with  warranty,  and  the  buyer  is 
notified  by  a  third  party  that  the  horse  is  his,  and  requested 
to  deliver  it  to  him,  and  this  the  buyer  refuses  to  do,  and 
defends  against  an  action  in  which  this  third  person  succeeds 
in  proving  the  horse  to  be  his  property;  and  then  the  buyer 
resorts  to  the  seller  on  his  warranty,  can  he  now  claim  from 
him  the  expenses  of  his  unsuccessful  defence,  either  on  the 
ground  that  it  was  the  direct  and  immediate  consequence  of 
the  breach  of  warranty,  or  that  it  was  for  the  benefit  of  the 
seller. 

It  is  obvious,  in  the  first  place,  that  this  question  must  be 
affected  somewhat  by  the  presence  or  absence  of  fraud,  or  any 
wilful  wrong,  on  the  part  of  the  defendant ;  for  if  that  comes 
into  the  case  it  would  seem  to  enlarge  the  discretion  of  the 
jury  as  to  the  amount  of  damages,  and  also  the  equity  of  the 

V.  Coare,  1  Taunt.  566.     The  measure  and  its  actual  value,  whatever  that  may 

of  damages  in  an  action  brought  for  a  be. 

breach  of  an  implied  warranty  of  title,  (n)  In  an  action   for  the   breach  of 

in  the  sale  of  a  horse,  is  the  ))rice  paid  warranty  on  a  sale  of  a  horse,  the  ex- 

by  the  purchaser  with  interest  thereon  pensc  of  selling  him,  and  of  keeping 

and  the  cost  recovered  of  him  or  his  liim  for  such  reasonable  time  as  may 

vendee,  in  a  suit  brought  by  the  actual  be  necessary  to  effect  a  sale  at  the  best 

owner.     Armstrong  v.  Perry,  5  Wend,  advantage,   is    recoverable   as    special 

535.     In  Coolidge  v.  Brigham,  1  Mete,  damage.     Clare  v.  Maynard,  7  C.  &  P. 

547,  where  the  indorsements  on  a  pro-  741 ;  Ellis  r.  Clunnock,  7  C  &  P.  169; 

missory  note  warranted  genuine  proved  McKcnzie  v.  Hancock,  Kyan  &  IMoody, 

to  be  forged,  it  was  held,  that  the  mca-  4.36  :  Chesterman  v.  Laml).  4  N.  &  M. 

sure  of  damages  would  be  the   differ-  195,  2  A.  &  E.  129. 

ence  between  the  amount  of  the  note  (o)  Bridge  v.  Wain,  1  Stark,  504. 


4SS  THE  LAW  OF  CONTRACTS.         [PART  II. 

plaintifT's  claim.  But  if,  supposing  no  wilful  wrong  to  be  al- 
leged or  shown,  and  therefore  that  both  parties  are  equally  in- 
nocent, if  we  then  say  that  the  plaintiff  may  always  reclaim  his 
expenses  of  litigation,  tliis  would  give  him  the  power  ot  sub- 
jecting the  defendant  to  the  heavy  costs  of  defending  against 
a  suit  where  there  was  no  defence,  which  the  defendant  never 
would  have  defended,  nor  the  plaintiff,  had  he  but  known  that 
he  was  doing  so  out  of  another's  purse.  But  if  we  say  that 
these  expenses  shall  never  be  recovered,  the  plaintiff  must 
then  either  be  justified  in  abandoning  the  thing  he  bought  to 
the  first  adverse  claimant,  and  the  mere  fact  of  the  claim  be 
held  enough  to  establish  his  right  to  sue  on  the  warranty, 
which  would  be  absurd,  or  else  he  would  be  bound  to  main- 
tain at  his  own  cost  a  title  which  he  had  paid  for  and  which 
another  had  warranted. 

In  truth  it  would  be  impossible  to  lay  down  a  universal 
rule,  because  the  question  as  it  arises  in  each  case  must  be 
determined  by  the  merits  and  circumstances  of  that  case. 
But  through  all  of  them  the  principle  of  compensation  must 
be  regarded  ;  and  this  would  lead  to  the  conclusion  that 
wherever  the  litigation  was  entered  into  by  the  buyer,  not 
only  in  good  faith,  but  on  reasonable  grounds,  and  it  could 
be  viewed  as  a  measure  of  defence  proper  for  the  interests 
both  of  buyer  and  seller,  andj  perhaps,  when  due  notice  of  the 
claim,  the  action  and  the  proposed  defence  were  given  to  the 
warrantor,  there  the  plaintiff  should  be  allowed  the  expenses 
of  the  defence  in  his  damages,  and  otherwise,  not.  For  prac- 
tical purposes,  it  would  be,  we  think,  of  great  importance  for 
a  buyer  threatened  with  the  loss  of  his  purchase  by  an  ad- 
verse claimant,  to  give  notice  to  his  seller  and  w^arrantor, 
somewhat  on  the  old  principle  of  voucher.  For  if  the  seller 
did  not  choose  to  defend,  the  buyer  might  then  safely  abandon 
the  property,  unless  he  preferred  to  defend  his  title  on  his 
own  account.  And  if  the  seller  took  notice  and  defended  the 
suit,  the  buyer  would  either  have  his  title  confirmed  without 
costs  to  himself,  or  an  unquestionable  claim  on  the  war- 
ranty. {]))     And,  for  the  same  reasons,  it  would  doubtless  be 

(/))  Blasdale  v.  Babcock,    1    Johns.    In  Lewis  v.  Pcake,   7  Taunt.  153,  the 
517  ;  Coolid^jc  v.  Brij^'liam,  5  Mete.  GS.     phtintiff  bought  a  horse  of  tlie  defend- 


CH.  VII.]  DAMAGES.  489 

expedient  for  any  party  to  give  notice,  who  is  to  look  to 
another  for  compensation  for  j)ropcrty  taken  from  him  by  a 
third  party,  on  other  grounds  than  those  of  warranty.  • 

8.   When  Interest  is  included. 

There  is  another  element  which  enters  into  the  damages 
given  for  breach  of  contract,  for  the  purpose  of  making  these 
damages  compensation ;  and  this  is  interest.  In  general, 
where  the  injury  complained  of  consists  in  the  non-payment 
of  money,  the  amount  unduly  withheld,  together  with  the 
interest  on  that  amount,  during  the  period  of  the  withhold- 
ing, makes  up  the  whole  compensation,  because  the  law  as- 
sumes that  interest,  oT  the  money  paid  for  the  use  of  money, 
is  the  exact  measure  of  the  worth  of  money.  This  would  be 
very  nearly  true,  in  fact,  of  the  rate  of  interest  actually  paid 
in  the  market,  if  this  were  wholly  unaffected  by  the  usury 
laws.  But  as  the  law  assumes  that  the  rate  of  interest 
which  it  allows  is  that  which,  on  the  whole,  interest  ought 
to  be,  and  indeed  fixes  the  rate  on  that  ground,  where  it  dif- 
fers so  much  in  different  parts  of  this  country,  it  must  as- 
sume in  every  case  that  this  standard  measures  the  use 
which  the  plaintiff  might  have  made  of  his  money.  The 
questions  which  arise  in  relation  to  interest,  we  have  already 
considered  in  our  previous  chapter  on  interest  and  usury. 

ant,  with  warranty,  and  relying  thereon  fore  a  part  of  the  damages  which  the 
sold  it  to  one  Dowling,  with  a  warranty,  plaintiff  has  sustained  by  reason  of  the 
The  plaintiff,  being  sued  by  Dowling  false  warranty  found  against  the  defend- 
for  a  breach  of  the  warranty,  gave  ant.  I  therefore  am  of  opinion,  that 
notice  of  the  action  to  tlie  defendant,  the  plaintiff'  was  entitled  to  recover 
and,  as  he  received  no  answer,  defended  these  damages."  But  the  expense  of 
the  action.  Dowling  recovered  the  defending  a  suit  beyond  the  taxed  costs 
price  of  the  horse  and  88/.. costs.  The  cannot,  it  seems,  be  recovered.  Arm- 
plaintiff,  in  an  action  against  the  defend-  strong  v.  Percy,  5  Wend.  535  ;  ante,  p. 
ant  for  a  breach  of  the  warrant}^  was  441,  n.  (i.)  And  the  taxed  costs  cannot 
held  entitled  to  recover  the  costs  which  be  recovered,  even  if  notice  of  the  suit 
he  had  paid  in  the  suit  brought  by  Dow-  have  been  given,  if  the  defect  in  the 
ling.  Gibbs,  C.  J.,  said  :  "  The  plaintiff  thing  warranted  could  have  been  dis- 
was  induced  by  the  warranty  of  the  de-  covered  on  a  reasonable  examination, 
fendant,  to  warrant  the  horse  to  a  pur-  so  that  the  defence  of  the  action  was 
chaser;  he  gave  notice  to  tiic  defendant  rash  and  improvident.  AVrightup  v. 
of  the  action,  and  receiving  no  dircc-  Chamberlain,  7  Scott,  598  ;  2  Jurist,  328. 
tions  from  the  defendant  to  give  up  the  See  Penley  v.  Watts,  7  M.  &  \V.  601, 
case,  lie  proceeded  to  defend,  and  was  per  Parke,  B. 
cast;  those  costs  and  damages  are  there- 


490  THE   LAW   OF   CONTRACTS.  [rART  II. 


^  SECTION  vm. 

OF  THE  BREACH  OF  CONTRACT  TO  PAY  MONET  OR  GOODS. 

If  a  note  or  written  promise  be  to  pay  so  much  money, 
but  in  goods  specified,  and  at  a  certain  rate,  and  the  promise 
is  broiccn,  it  is  not  quite  settled  whether  the  law  will  regard 
this  as  a  promise  to  pay  money,  or  deliver  these  goods;  and 
it  may  be  a  very  important  question  if  the  goods  have  varied 
much  in  value.  Thus  if  one  fails  in  his  promise  to  pay 
one  thousand  dollars  in  flour,  at  five  dollars  a  barrel,  and 
when  the  flour  should  be  delivered  it  is  worth  six  dollars 
a  barrel,  and,  not  being  delivered,  an  action  is  brought,  the 
question  is  whether  the  defendant  should  pay  one  thousand 
dollars,  or  the  worth  of  two  hundred  barrels  of  flour  at  six 
dollars  each,  that  is,  twelve  hundred  dollars.  The  true 
question  is  whether  it  was  intended  that  the  promisor  might 
elect  to  pay  the  money  or  deliver  the  articles ;  or,  in  other 
words,  whether  it  was  agreed  only  that  he  owed  so  much 
money,  and  might  pay  it  either  in  cash  or  goods,  as  he  saw 
fit.  There  might  be  something  in  the  form  of  the  promise, 
in  the  res  g-eslcc,  or  in  the  circumstances  of  the  case,  which 
by  showing  the  intention  of  the  parties  would  decide  the 
general  question,  but  in  the  absence  of  such  a  guide,  and 
supposing  the  question  to  be  presented  merely  on  the  note 
itself,  as  above  stated,  we  should  say  that  the  more  rea- 
sonable construction  would  be  that  it  was  an  agreement 
for  the  delivery  of  goods  in  such  a  quantity  as  named, 
and  of  such  a  quality  as  that  price  then  indicated.  And 
on  a  breach  of  this  contract,  the  promisor  should  be  held 
to  pay,  as  damages,  the  value  of  so  much  of  such  goods, 
at  their  increased  or  diminished  price,  (q)     But  if  the  pro- 

{(])  Mason  v.  Pliilips,  Addison,  346  ;  riiilips,  tlic  defendant,  tlie  lessee,  covc- 

Pricc  V.  Justrovc,  Harper,  111  ;  Cole  v.  nanted  to  pay  rent  in  good  merchantable 

Ross,  9  B   Mon.  393  ;  Clark  v.  Pinney,  prain  ;   wheat,  at  four  shillin<rs  ;  rye,  at 

7  Cow.  f)81  ;  Walton  v.    Craijr,  2  liihh,  three  shillings;  and  corn,  at  two shiliin;j:s 

56-t  ;  McDonold  r.  Ilodge,  5  Haywood's  and  six  pence  per  bushel.     It  was  held, 

Term  M.:  Edgar  v.  I5ois,   11   "S.  &  II.  that  the  damages  were  to  be  ascertained 

445,  per  (libson,    J.       Sec    Wilson   v.  by  valuing   tlie   grain    at   tlie   current 

George,  10  N.  II.  445.     In  Mcasou  v.  prices,  at  the  time  of  delivery,  with  in- 


CH.  VII.]  DAMAGES.  •  491 

mise  be  only  to  pay  one  thousand  dollars  at  a  certain  time, 


tcrcst  from  that  time.  In  Cole  v.  Eoss, 
9  B.  Mon.  393,  it  was  iield  that  "  a 
covenant  to  pay  $3,333.33,  payable  in 
good  merciiantable  pig  metal,  delivered 
on  the  bank  in  Greenupsburg,  at  twenty- 
nine  dollars  per  ton,  could  not  be  dis- 
charged by  the  payment  of  $3,333.33  on 
the  day  appointed  for  the  payment."  Per 
Sampson.  J. :  "  The  expression  ^payable 
in  good  merchantable  pig  metal,'  clear- 
ly points  out  the  thing  which  is  to  be 
paid ;  it  is  not  of  the  same  import  with 
the  expression  may  be  paid  in  pig  metal. 
The  latter,  if  used,  would  have  implied 
an  election  to  pay  in  the  thing  named  or 
not,  as  it  might  suit  the  convenience  of 
the  obligors  ;  the  former  in  direct  and 
positive  language,  makes  the  amount 
payable  in  the  thing  specified,  and 
shows  that  it  was  really  a  contract  for 
pig  metal,  and  not  for  money,  which 
might  be  paid  hj  the  delivery  of  the 
article  named;  and  that  the  sum  men- 
tioned was  merely  the  medium  by  which 
the  quantity  of  the  thing  contracted  for 
was  to  be  ascertained,  according  to  its 
stipulated  value  per  ton."  There  is  no 
substantial  difference  between  tiie  writ- 
ing sued  on  in  this  case,  and  the  one 
upon  which  the  suit  was  brought,  in  the 
caSe  of  Matton  v.  Craig,  (2  Bibb,  584.) 
In  the  last-named  case,  the  note  was 
for  the  payment  of  '  eighty-nine  dollars, 
to  be  discharged  in  good  merchantable 
brick,  common  brick  at  four  dollars  per 
thousand,  and  sand  brick  at  five  dollars 
per  thousand.'  The  court  decided  that 
the  note  was  not  for  the  payment  of 
money,  but  for  the  payment  of  brick.  It 
is  the  opinion  of  a  majority  of  the  court, 
(Judge  Graham  dissenting.)  that  the 
note  in  this  case  was  payable  alone  in 
pig  metal,  and  could  not  be  discharged 
by  paying  the  sum  mentioned  in 
money."  But  there  are  authorities, 
of  perhaps  equal  weight,  which  held 
that  a  note  promising  to  pay  a  certain 
sum,  in  specific  articles  at  a  given  price, 
may  be  discharged  by  the  delivery  of 
the  articles,  or  by  the  payment  of  the 
sum  stated,  at  the  debtors'  election  ;  but, 
after  the  time  fixed  for  delivery  has 
elapsed,  they  become  obligations  for 
the  pavment  of  that  sum.  Pinney  v. 
Gleason,  5  Wend.  393,  .5  Cow.  152,  411  ; 
Brooks  V.  Hubbard,  3  Conn.  58  ;  Perry 
V.  Smith,  22  Verm.  301.  In  Pinney  v. 
Gleason,  5  ^yend.  397,  the  note  was  in 
this  form  :  "  For  value  received,  I  pro- 


mise to  pay  A.  B.  $79,50  on,  &c.,  in  . 
salt,  at  fourteen  shillings  per  l)arrel." 
Per  Ch.  Walworth  :  "  Puthier  says  these 
agreements  for  paying  anything  else  in 
lieu  of  what  is  due,  are  always  presumed 
to  be  made  in  favor  of  the  debtor,  and 
therefore  he  has  always  a  right  to  pay 
the  thing  which  is  actually  due,  and  the 
creditor  cannot  demand  anything  else; 
and  he  puts  the  case  of  a  lease  of  a  vine- 
yard at  a  fixed  rent,  expressed  in  the 
usual  terms  of  commercial  currency, 
but  payable  in  wine.  In  such  a  case, 
he  says,  the  lessee  is  not  obliged  to 
deliver  wine,  but  may  pay  the  rent  in 
money.  2  Ev.  Poth.  347,  N.497.  Chip- 
man,  in  his  valuable  treatise  on  the  law 
of  contracts  for  the  delivery  of  specific 
articles,  puts  the  case  of  a  note  for§100, 
payable  in  wheat,  at  75  cents  per  bushel, 
and  concludes  that  it  comes  within  the 
principle  referred  to  by  Pothier.  and  that 
the  debtor  may  pay  the  $100  in  money, 
or  in  wheat  at  the  price  specified.  He 
says  the  nature  of  the  contract  is  this : 
The  creditor  agreed  to  receive  wheat 
instead  of  money,  and  as  the  parties 
concluded  the  price  of  wheat  at  the  time 
of  payment  would  be  75  cents  per 
bushel,  to  avoid  disputes  aljout  the 
price  they  fixed  it  at  75  cents  in  the 
contract.  If  at  the  time  fixed  for  pay- 
ment, wheat  be  at  .50  cents  a  bushel, 
the  debtor  may  pay  it  in  wheat  at  the 
rate  of  75  cents.  That,  if  the  parties 
had  intended  the  risk  in  the  rise  and  fall 
of  the  wheat  should  be  equal  with  both, 
the  contract  would  have  been  simply 
for  the  payment  of  a  certain  number  of 
bushels.  Chip,  on  Con.  35.  This  con- 
struction of  the  contract  appears  to  be 
rational,  and  is  probalily  in  accordance  ' 
with  the  practice  of  those  parts  of  the 
country  where  these  contracts  are  most 
frequently  made.  The  language  is  cer- 
tainly not  the  best  which  could  be  used 
to  express  such  an  intent;  and  probably 
if  the  contract  were  drawn  by  a  lawyer 
he  would  put  it  in  the  alternative,  giving 
the  debtor  the  option  in  express  terms, 
to  pay  the  debt  in  money,  or  in  wheat 
at  the  fixed  rate  per  bushel.  But  cer- 
tainly if  the  intention  of  the  parties  was 
that  a  certain  number  of  bushels  of 
wheat  should  be  absolutely  delivered  in 
payment,  a  lawyer  would  draw  the  note 
for  so  many  bushels  of  wheat  in  direct 
terms."  Where  notes  are  given  for  a 
specitied  sum,  payable  in  bank-notes  or 


492 


THE  LAW   OF   CONTRACTS. 


[part  II. 


in  flour,  then  this  sum   is  to  be  paid,  either  in  flour  or  in 
money,  at  the  election  of  the  payor,  (r). 


SECTION  IX. 


OF    NOMINAL   DAMAGES. 


As  damages  are  compensation  for  some  actual  injury 
sustained,  it  might  seem  that  where  a  wrong  was  done,  but 
no  actual  injury  sustained,  there  could  be  no  action  for  dam- 
ages, for  there  is  nothing  which  requires  compensation.  It 
would  seem  to  be,  in  the  language  of  the  law,  injuria  sine 
damno.  And  there  are  ancient  and  strong  authorities  for  the 
rule,  that  no  action  for  damages  will  lie  unless  an  actual 
injury  is  cither  sustained,  or  is  inevitable.  (.9)  But  there  is 
also  high  authority,  and,  in  our  view,  decisive  authority,  for 
the  assertion,  that  every  injury  imports  a  damage,  {t)     This 


other  choses  in  action,  the  measure  of 
damages  has  been  held  to  be  the  vahie 
of  sueli  paper  at  the  time  the  notes  be- 
come due.  Smith  r.  Dunlap,  \1  Illi- 
nois, 1P4;  Clay  f.  Huston.  1  Bibb.  4(51; 
Anderson  v.  Krvinfr,  .'3  Litt.  245  ;  Phelps 
I'.  Kiley,.'?  Conn. 266  :  Coldrcnr.  Miller, 
1  Blackf.  296:  Vanblcct  v.  Adair,  1 
Id.  346  ;  Gordon  r.  Parker,  2  S.  &  M. 
485;  Ilixon  v.  Hixon,  7  Humph.  33; 
Ilobinson  i-.  Noble,  S  Peters,  181. 

(r)  Brooks  v.  Hubbard,  3  Conn.  60, 
per  l/osmcr.  C.  J. :  Mettlcr  v.  Moore,  1 
Blackf.  342. 

(s)  19  II.  G,  44  :  Waterer  v.  Freeman, 
Hobart,  207  (a,)  i^l-y  Ihhart,  C.J.  ;  Ash- 
by  r.  White,  2  Lord  llaymond,  938 ; 
1  Smith,  Ld.  Cas.  105,  per  Curiam, 
Lord  Hull,  disstntitnte. 

(<)  Ashbyz;.Wiiite,  2Lord  Raymond, 
938,  955  ;"l  Salk.  19;  1  Smith's  Ld. 
Cases,  105,  per  Lord  Holt;  Williams 
V.  Mostym,  4  M.  &  W.  145,  153,  per 
Parke,  B. ;  Mellor  v.  Spateman,  1  Wm. 
Saunders,  .346,  (n.)  note  2  ;  In  Webb  v. 
Portland  I\Ianuf.  Co.  3  Sumn.  189,  192, 
Story,  J.,  said  :  "  I  can  very  ■vvcU  un- 
derstand, that  no  action  lies  in  a  case, 
where  tlicre  is  (lumniim  abs/jiin  Injuria, 
that  i.-,  where  tliere  is  a  damage  done 
without  any  wrong  or  violation  of  any 
right  of  the  plaintiff.     But  1  am  not 


able  to  understand  liow  it  can  be  cor- 
rectly said,  in  a  legal  sense,  that  an 
action  will  not  lie,  even  in  a  case  of 
wrong  or  violation  of  a  right,  unless  it 
is  followed  by  some  perceptible  damage, 
which  can  be  established  as  a  matter'of 
fact ;  in  other  words,  that  injuria  sine 
damno  is  not  actionable.  On  the  con- 
trary, from  my  earliest  reading,  I  have 
considered  it  laid  up  among  the  very 
elements  of  the  common  law,  that  where- 
ever  there  is  a  wrong,  there  is  a  remedy 
to  redress  it ;  and  that  every  injury  im- 
ports damage  in  the  nature  of  it,  and, 
if  no  other  damage  is  established,  the 
party  injured  is  entitled  to  a  verdict  for 
nominal  damages.  .  .  So  long  ago 
as  the  great  case  of  Ashby  v.  White, 
(2  Lord  Kaym.  R.  938  ;  S.  C.  6  Mod. 
11.  45  ;  Holt's  R.  524,)  the  objection  was 
put  forth  by  some  of  the  judges,  and 
was  answered  by  Lord  Holt,  with  his 
usual  ability  and  clear  learning;  and  his 
judgment  was  su])portcd  by  the  House 
of  Lords,  and  that  of  bis  brethren  over- 
turned. l}y  the  favor  of  an  eminent  judge, 
Lord  Holt's  ojjinion,  api)arently  cojjicd 
from  his  own  manuscrijit,  has  been  re- 
cently printed.  [London:  Saunders  and 
Benning,  1837. |  In  this  last  printed 
0])inion,  (p.  14,)  Lord  //o/<  says  :  "It 
is  impossible  to  imagine  any  such  thing 
as  iujnriti  sine  damno.  Every  injury 
imports  damage  in  the  nature  of  it." 


en.  VII.] 


DAMAGES. 


493 


injury  sometimes  consists  in  the  denial  of  a  right,  or  of  pro- 
perty, which  is  implied  by  the  wrongful  act,  and  not  in  any 
consequences  which  have  yet  flowed,  or  can  be  immediately 
apprehended  from  it.  And  it  often  happens  that  an  action  is 
brought,  sounding  only  in  damages,  but  intended  merely  to 
ascertain  and  establish  a  right,  without  any  thought  of  com- 
pensation. For  this  purpose  any  verdict  and  judgment,  for 
the  smallest  sum,  is  as  eflectual  in  law  as  if  for  a  larger. 
And  it  is  now  the  established  practice  in  England  and  in 
this  country,  to  give  a  plaintiff  damages  if  he  succeeds  in 
proving  that  the  defendant  has  broken  his  contract  with 
him,  or  has  trespassed  upon  his  property,  or  in  any  way 
invaded  his  rights.  But  if  no  actual  injury  has  been  sus- 
tained beyond  that  which  the  verdict  and  judgment  will 
themselves  correct,  and  the  case  does  not  call  for  exemplary 
damages,  the  jury  would  then  be  directed  to  give  nominal 
damages ;  that  is,  a  sum  of  insignificant  value,  but  called 
damages,  (k)  Cases  of  this  class  have  sometimes  been 
decided  on  the  ground  that  nominal  damages  may  be  re- 
covered  for   only    probable,  or  even   possible    damages,  (y) 


(u)  Thus  the  owner  of  a  several  fishe- 
ry recovered  nominal  damages  of  the 
defendant,  in  an  action  of  trespass,  for 
fishing  in  it,  although  no  fish  were  taken. 
Patrick  v.  Greenway,  I  Saund.  34G,  b. 
So  nominal  damages  may  be  recovered 
for  an  unlawful  flowing  of  the  plaintifi''s 
land,  although  no  actual  damage  is 
done.  Chapman  v-  Thames  Manuf.  Co. 
13  Conn.  269:  Whipple  v.  Chamber- 
lain Manuf.  Co.  2  Story,  661  ;  Pastorius 
V.  Fisher,  1  Rawle,  27 ;  llipka  v.  Ser- 
geant, 7  W.  &  S.  9.  So  they  may  be 
recovered  for  the  diversion  of  a  water- 
course, without  proof  of  actual  damage. 
Webb  r.  Portland  Manuf.  Co.  3  Sumn. 
189;  Piumtleigh  w.  Dawson,  1  Oilman, 
544  ;  Dickinson  v.  The  Grand  Junction 
Canal  Co.  9  Eng.  L.  &  Eq.  513,  7  Exch. 
2S2.  The  jirinciple  upon  which  these 
cases  rest,  is  thus  stated  by  Sergeant 
Williams,  INIellor  v.  Spateman,  1  Saund. 
346,  h.,  note  (b.)  "  Wherever  any  act 
injures  another's  right,  and  would  be  evi- 
dence in  future  in  favor  of  the  wrong- 
doer, an  action  may  be  maintained  for 
an  invasion  of  the  right,  Avithout  proof 
of  any  specific  injurv." 

(i')  Wells  V.  Watllng,  2  W.  BI.  1223  ; 

VOL.    II.  42 


Wcller  i\  Baker,  (the  case  of  the  Tun- 
bridge  Well-Dippers,)  2  Wils.  414  ;  Al- 
laire V.  Whitney,  1  Hill,  484.  Generally, 
in  an  action  for  a  breach  of  a  contract, 
the  bread),  but  no  actual  damage,  being 
proved,  nominal  damages  will  be  award- 
ed.    Boorman   v.  Brown,  3  Q.  B.  515, 

1 1  CI.  &  Fi.  I  ;  Marzetti  v.  Williams,  1 
B.  &  Ad.  415.  So,  if  an  agent  violate 
instructions,  although  no  actual  damage 
be   shown.     Frothingham    v.   Everton, 

12  N.  II.  239  ;  Blot  v.  Boiceau,  3  Comst. 
78,  84.  So  if  a  sherifi:'  neglect  his  duty, 
although  no  actual  damage  arise.  Laflin 
V.  Wilhird,  16  Pick.  64 ;  Glczen  v.  Rood, 
2  Mete.  490;  Bruce  v.  Pcttengill,  12  N. 
11.341.  The  Supreme  Court  of  Ver- 
mont seems  to  have  gone  very  far  in  re- 
fusing to  sustain  an  action  of  trespass 
for  the  taking  of  personal  property.  In 
Paul  V.  Slason,  22  Verm.  231,  the  de- 
fendant, a  sheriff,  attached  hay,  belong- 
ing to  tlie  plaintiff,  and  in  removing  it, 
used  the  plaintiff's  jiitchfork.  For  the 
taking  of  this  among  other  things  the 
action  of  trespass  Avas  brought  The 
court  below  "  charged  the  jury,  that  if 
they  found  that  it  was  merely  used  for 
a  portion  of  a  day  in  removing  the  plain- 


494 


THE   LAW    OF   CONTRACTS. 


[part  II. 


And  sometimes  a  jury  uses  the  same  means  of  expressing 
its  opinion  tliat  the  plaintiff"  has  failed  substantially^  although 
he  has  succeeded  formally.  As  when  in  slander  or  assault 
and  battery,  the  jury  find  for  the  plaintiff,  but  assess  damages 
at  a  few  cents,  (ic) 

SECTION  X. 

OF  DAMAGES   IN  REAL  ACTIONS. 

Thus  far  we  have  treated  only  of  damages  for  the  breach 
of  personal  contracts;  or  for  personal  torts.  In  real  actions, 
strictly  speaking,  damages  were  not  demanded  or  given  at 
common  law;  (.r)  the  old  writ  of  estrepement,  after  judgment, 
gave  compensation  in  some  cases;  {y)  but  damages  were 
given  by  early  statutes,  and  properly  belong  to  all  mixed 
actions,  and  to  personal  actions  relating  to  land,  (z)  In 
ejectment  they  are  in  general  nominal  only;  [a)  and  a 
subsequent  action  of  trespass  is  brought  for  the  mesne  pro- 
fits,  {b)     But   where   the  plaintiff  has    a    title    and   estate 


tiff's  property,  thus  attached,  and  was 
left  whure  it  was  fouiul,  so  that  the  pL-xiii- 
tiff  had  it  again,  and  that  it  was  not 
injured  by  the  use,  they  were  not  bound 
to  give  the  phaintiff  damages  for  such 
use."  Tiiis  charge  was  sustained,  and 
Polard,  J.,  in  delivering  the  opinion  of 
the  court  said :  "It  is  true,  that,  by  the 
theory  of  the  law,  whenever  an  invasion 
of  a  right  is  established,  though  no 
actual  damage  be  shown,  the  law  infers 
a  damage  to  the  owner  of  tlie  property, 
and  gives  nominal  damages.  This  goes 
upon  llic  groun<l,  that  either  some 
damage  is  the  prulxthle  result  of  the  de- 
fendant's act.  or  that  Ills  act  would  have 
effect  to  injure  the  other's  rujld,  and 
would  be  evidence  in  future  in  favor  of 
the  wrongdoer,  if  his  right  ever  came  in 
question.  In  these  cases  an  action  may 
be  supported,  though  there  be  no  actual 
damage  done;  because  otlierwisc  the 
party  might  lose  his  right.  So,  too, 
whenever  any  one  wantonly  invades 
another's  right,  for  the  purjjose  of  in- 
jury, an  action  will  lie  tliough  no  actual 
damage  be  done ;  tlie  law  presumes 
damage  on  account  of  the  unlawful  in- 
tent.   But  it  is   believed   that  no  case 


can  be  found,  where  damages  have  been 
given  for  a  trespass  to  personal  property, 
wlien  no  unlawful  intent,  or  disturbance 
of  a  right  or  possession,  is  sliown,  and 
when  not  only  all  probable,  but  all  possi- 
ble damage  is  expressly  disproved." 

(w)  Where  the  plaintiff  had  destroy- 
ed her  own  character  by  her  dissolute 
conduct,  the  jury  in  an  action  of  slan- 
der, may  give  nominal  damages.  Flint 
y.  Clark,  13  Conn.  361. 

(.r)  Sayer  on  Damages,  p.  5  ;  Stearns 
on  Real  Actions,  390. 

(]/)  2  Inst.  329  ;  3  Bl.  Comm.  225  ; 
Saycr  on  Damages,  34. 

(z)  20  Hen.  IIL  c.  3  ;  52  Hen.  III. 
C.  16  ;  6  Ed.  I.  c.  1  ;  Pilfold's  case,  10 
Co.  115  ;  Stearns  on  Real  Actions,  389, 
et  set]. 

(a)  Van  Alen  v.  Rogers,  1  Jolms. 
Cas.  281 ;  Harvey  v.  Suow,  1  Yeatos, 
156. 

{b)  Van  Alen  v.  Rogers,  I  Johns.  Cas. 
281  ;  Adams  on  Ejectment,  328.  In 
some  States,  mesne  profits  are  recover- 
ed in  the  action  of  ejectment.  Boyd  v. 
Cowan,  4  Dallas,  138;  Battin  v.  Bige- 
low,  1  Peter's  C.  C.  452  ;  Starr  v.  Pease, 
8  Conn.  541  ;  Dcnn  v.  Clmbb,  1  Coxe, 


CH.   VII.]  DAMAGES.  495 

which  would  maintain  his  action,  and  the  estate  terminates 
or  the  title  expires  while  the  action  is  pending,  actual  dam- 
ages may  be  recovered,  including  mesne  profits,  (c)  Some- 
times trespass  for  mesne  profits  is  brought,  not  only  for  them, 
but  to  try  the  title  to  the  estate,  [d) 

The  question,  what  damages  may  be  recovered,  is  not  only 
determined  in  this  as  in  other  cases  by  the  principle  of  com- 
pensation, but  this  principle  is  carried  very  far.  Thus,  the 
rent  of  the  land  is  barely  prima  facie  evidence  of  its  annual 
value  or  profit,  and  the  jury  may  exceed  it  very  much,  indeed 
to  whatever  extent  is  necessary  to  give  the  plaintiff  adequate 
compensation,  {e)  The  damages  have  been  held  to  be  "  as 
uncertain  as  in  an  action  of  assault ; "  and  because  the  action 
is  in  fact  as  well  as  form  for  a  tort,  bankruptcy  is  no  suffi- 
cient plea  in  defence.  (/)  So,  to  make  up  the  value,  the 
rents  have  been  allowed  and  interest  upon  them,  (g-)  and  the 
costs  of  the  litigation  by  which  the  title  was  established,  (h) 
The  common  law,  unlike  the  Roman  law  and  the 
modern  codes  founded  upon  it,  gives  to  a  bond  fide  holder 
without  title,  no  claim  for  his  improvements  against  the  true 
owner.  If  he  loses  the  land,  he  loses  with  it  all  the  im- 
provements which  have  become  fixed  to  the  realty,  (i)  In 
many  of  our  States  the  civil  law  principle  has  been  adopted 

(N.  J.)  466  ;  Beach  v.  Beach,  20  Verm.  v.  Man,  2  Penn.  St.  271,  276  ;  Adams 

83 ;  Edgerton  v.  Clark,  20  Id.  264.  But  on  Eject.  338. 

the   recovery  of  mesne   profits   in  the  (/)  Goodtitle   v.  North,  Doug.  584, 

action  of  ejectment  has  l)ccn  held  to  bo  per  13uUei%  J. 

no  bar  to  a  subsequent  action   for  tres-  (//)  Jackson  v.  Wood,  24  Wend.  443. 

pass   for  wanton   injuries.     Waller  v.  (h)  Astin   v.    Parkin,   2    Burr.  665. 

Hitchcock,  19  Verm.  634.     See  Gill  v.  The  rule  appears  to  be  that  where  the 

Cole,  1  H,  &  J.  403.  costs  have  been  taxed  in  tlie  ejectment 

(c)    Thurstout   v.  Grey,   2    Strange,  s^'t.  nothing  more  than   those  can  be 

1056;  Robinson  v.  Campbell,  3  Wheat,  recovered      Doe  w.  Davis,  1  Esp.  358  ; 

212;     Wilkes   v.  Lion,    2    Cow.   333;  ^^^   r.  Hare,  4  Tyrw.  291.     See  an^e, 

Brown  v.  Gallowav,  1  Peters,  C.  C.  291,  P-'^ge  441,  n.  (,)     But  where  they  have 

299:  Alexander   v.   Herr,  1  Penn.  St.  not  been  taxed,  as  mease  of  a  judgment 

537.  See  Stackdale  v.  Young,  3  Strobh.  ^J  '^^fiiult  or  where  there  is  a  writ  of 

cQj  error,  evidence   may   be  introduced  to 

show  their  amount.    Nowell  v.  Roake,  7 

(of)  Bullock  V.  Wilson,  3  Porter,  382 ;  ^  &  q,  404 .  Brooke  v.  Bridges,  7  J.  B 

Sunter  v.   Lehre,  1  Tread.    (So.  Car.)  Moore,  471  ;  Doe  v.  Huddart,  5  Tyrw. 

102.  In  Massachusetts,  both  the  land  and  §46^  2  C.  M.  &  R.  316  ;  Baron  v.  Abeel, 

the  mesne  profits  are   recovered  by  a  3  joi^g,  481.     gee  Alexander  v.  Herr, 

writ  of  entry.    Rev.  St.  ch.  101  ;"  Wash-  jj  Penn.  St.  537. 

ington  Bank  v.  Brown,  2  Mete.  293.  (,)  Powell  v.  M.  &  B.  Manf.  Co.   3 

(e)  Goodtitle  u.  Tombs,  3  Wils.  118;  Mason,  369;    2   Kent's   Comm.   334- 

Dewey  v.  Osborne,  4  Cow.  329  ;  Drexel  338. 


400 


THE   LAW   OF   CONTRACTS. 


[part  II. 


and  statutory  provisions  made,  by  which  such  defendant, 
being  ousted  by  a  better  title,  may  recover  the  value  of  his 
improvements,  as  assessed  by  a  jury  of  the  vicinage,  (j) 
Besides  this,  however,  it  has  been  held  in  this  country,  that 
a  holder  of  land  in  entire  good  faitli,  if  ousted  by  a  better  title 
of  which  he  was  ignorant,  and  afterwards  called  upon  to  re- 
fund the  mesne  profits,  may  set  off  his  improvements  against 
the  mesne  profits.  (A).  But  such  improvements  must  be  in 
their  nature  permanently  beneficial  to  the  estate.  (/)  In 
that  case  a  Court  of  Equity  will  sustain,  against  the  actual 
owner,  after  recovery  of  the  premises,  a  bill  brought  by  a 
bond  fide  possessor,  for  the  value  of  his  improvements,  (m) 

A   doweress   from    whom  land  is   withheld  may  recover 
damages,  (n)     But  when  the  suit. is  brought  for  land  upon 


(/)  Mass.  R.  St.  ch.  101  ;  Ohio  R. 
St.cli.  77;  N.  II.  R.  St.  ch.  190;  2 
Kent's  Comm.  335,  336 ;  Lfimar  v. 
Martin,  13  Ala.  31  ;  Bailey  v.  Hastings, 
15  N.  11.  525. 

(h)  Murray  v.  Gouvemeur,  2  Johns. 
Cas.  438,  441  ;  Jackson  v.  Loom  is,  4 
Cowcn,  168  ;  Green  v.  Biddle,  8  Wheat. 
1,  81,  citin<:  Coulter's  Case,  5  Co.  30; 
Hylton  V.  Brown,  2  Wasli.  C.  C.  165; 
Dowd  V.  Fawcett,  4  Dev.  92,  95 ;  Bev- 
erly V.  Burke.  9  Geo.  440  ;  Burrows  v. 
Peircc,  0  La.  Ann.  R.  303,  308. 

(/)  Worthiugton  v.  Young,  8  Ohio, 
401  ;  Mathews  r.  Davis,  6  Iluinph.  324. 

(m)  Bright  c.  Boyd,  1  Slory,  494.  2 
Id.  G05  :  Herring  v.  Bollard,  4  Humph. 
362;  Mathews  v.  Davis,  6  Id.  324; 
Martin  v.  Atkinson,  7  Geo.  228  ;  Brv 
ant  V.  Ilanihriek.  9  Geo.  133:  2  Story's 
Eq.  Juris.  §§  799,  b.  1237,  1238.  But 
see  Putnam  v.  Ritchie,  6  Paige,  390, 
403. 

(n)  The  law  on  this  subject,  as  it 
stood  under  tlie  statute  of  Morton,  was 
clearly  stated  by  Booth,  J.,  in  Layton  v. 
Butler.  4  Harrington,  507,  509.  "Dewer 
rindf.  nihil  halifl  b  a  real  action,  in  the  na- 
ture of  a  writ  of  right;  and  therefore, 
by  the  comnion  law,  no  damages  were 
recoverable  by  tlic  wife  for  its  detention. 
By  the  statute  of  Mcrton  it  was  enacted, 
that  wiiere  widows  were  efforced  of 
their  dower,  and  cannot  liave  it  irithont 
jtUa,  they  wlio  eH'orced  them  of  their 
dower,  of  the  lamls  u-lureof  their  hus- 
liuuflt;  flied  selsnl,  sliall,  upon  the  re- 
covery tliercof  by  such  widows,   yield 


them  damages,  that  is  to  say ;  the  value 
of  the  whole  dower,  (namely,  the  one 
third  of  the  annual  jtrofits  of  the  land) 
from  the  death  of  the  husband  unto  the 
day  that  the  widow,  by  the  judgment  of 
the  court,  has  recovered  seisin  of  her 
dower.  Where  the  husband  has  aliened 
the  land,  no  damages  can  be  recovered 
by  the  widow  against  the  alienee,  with- 
out a  demand  of  dower  and  a  refusal ; 
and  then  only  from  the  time  of  making 
the  demand.  Where  the  husband  dies 
seised  of  the  inheritance,  as  the  posses- 
sion immediately  devolves  on  the  heir, 
damages  may  be  recovered  against  him 
from  tiie  time  of  the  husband's  death. 
But  according  to  Co.  Litt.  32,  b.,  the 
hcirmay  save  himself  from  damages,  if 
he  comes  into  court  upon  the  summons 
the  first  day,  and  pleads  that  he  has  al- 
ways been  ready  and  yet  is  ready  to  ren- 
der dower,  and  prays  that  she  may  not 
have  damages ;  in  wiiich  case  if  the  wife 
has  not  recpicstcd  her  dower,  she  loses 
her  damages.  But  if  to  the  plea  she  re- 
plies a  demand  of  her  dower,  and  issue 
is  thereupon  taken  and  found  for  iier, 
she  recovers  damages  from  the  death  of 
her  husband.  If  the  heir  succeeds  on 
tlie  issue,  he  is  saved  from  damages 
from  tlie  time  of  the  husliand's  death ; 
but  still  the  widow  recovers  damages 
from  tiie  test  of  the  original  writ,  which 
in  law  is  considered  as  a  demand. 
So,  too,  in  the  case  of  tiie  husband's 
alienee,  damages  arc  given  from  tlic 
time  of  the  suing  out  of  the  writ,  al- 
though  no  demand   was  in  fact  made. 


CH.  vir.] 


DAMAGES. 


497 


which  valuable  improvements  have  been  made,  by  building 
houses,  for  instance,  either  by  the  alienee  of  the  husband 
or  by  the  heir,  it  is  not  positively  settled  whether  she  has 
damages  to  cover  her  claim  to  dower  in  these  improvements, 
or  must  be  limited  to  her  dower  in  the  land  as  the  purchaser 
took,  or  the  heir  inherited  it.  There  are  certainly  strong 
reasons,  if  not  conclusive  authority,  in  favor  of  the  principles 
applied  to«this  question  in  some  of  our  courts ;  namely,  that 
where  the  heir  adds  improvements  to  the  estate,  the  widow 
shall  have  her  dower  in  them  ;  but  not  in  the  improvements 
made  by  a  purchaser ;  (o)  but  that  she  shall  have,  against  a 
purchaser,  her  dower  in  the  increased  value  of  the  land,  caused 
by  the  general  growth  and  prosperity  of  the  country,  {p) 


It  seems  necessary,  therefore,  to  entitle 
the  widow  to  damages,  either  against 
the  alienee  or  the  heir,  that  she  should 
make  a  demand  of  her  dower  previous 
to  bringing  her  action  of  dower  nnde 
nihil  hiiliet.  By  the  damages  in  tliis  ac- 
tion are  meant  the  one  third  of  the  an- 
nual profits  of  the  land,  beyond  all  re- 
prises, (that  is,  after  deducting  land- 
taxes,  repairs,  &c.,)  and  also,  such  dam- 
ages as  the  wife  has  sustained  by  the 
detention  of  her  dower,  which  in  tlie  in- 
quisition taken  upon  a  writ  of  inquiry, 
are  usually  assessed  sevei'ally  ;  although 
it  is  said,  damages  may  be  given  gener- 
ally, without  finding  the  value  of  the 
land."  See  Watson  v.  Watson,  10  C.  B., 
1  E.  L.  C.  371.  In  many  States  the 
damages  for  the  detention  of  dower  are 
regulated  by  statutes.  N.  Y.  Rev. 
St.  vol.  2,  pt.  2,  tit.  3,  p.  28;  Mass. 
Rev.  St.  ch.  102 ;  4  Kent's  Com.  65. 
It  seems  that  in  some  of  the  States  the 
statute  of  Merton  is  iield  not  to  be  in 
force,  and  no  damages  are  given.  Hay- 
ward  i;.  Cuthburt,  1  McCord,  386  :  Bank 
of  U.  S.  V.  Dunseth,  10  Ohio,  18.' 

(o)  It  is  well  settled  that  a  Avidow  is 
entitled  to  dower  out  of  any  improve- 
ments that  may  have  been  made  by  the 
heir  previous  to  the  assignment.  Co. 
Lit.  32.  a. ;  1  Roper  on  Husband  and 
Wife,  346,  347  ;  Catlin  v.  Ware,  9  Mass. 
218;  Powell  r.  M.  &  B.  Manuf.  Co.  3 
Mason,  346,  365  ;  but  not  out  of  any 
improvements  made  by  the  alienee  of 
her  deceased  husband.  Gore  i-.  Brazier, 
3  Mass.  544 ;  Ayer  v.  Spring.  9  Id.  8, 
10  ;  Id.  80  ;  Stearns  v.  Swift,  8  Pick.  532 ; 
Woolbridge  V.  Wilkins,  3  How.  (Miss.) 

42  * 


360 ;  Humphrey  v.  Phinney,  2  Johns. 
434  ;  Wilson  v.  Oatman,  2  Blackf.  223  ; 
Mahonv  v.  Young,  3  Dana,  588  ;  Leg- 
gett  V.  Steele,  4  Wash.  C.  C.  305  ;  Bar- 
ney V.  Frowne,  9  Ala.  901  ;  1  Roper  on 
Husband  and  Wife,  346.  If  the  land  is 
impaired  in  value  between  the  time  of 
the  husband's  death  and  tlie  assignment 
by  the  heir,  the  widow  is  only  entitled  to 
dower  out  of  its  value  at  the  time  of  the 
assignment.  Co.  Litt.  32  a. ;  Hale  v. 
James,  6  Johns.  Ch.  258,  260,  per  Chan- 
cellor Kent;  Powell  v.  M.  &  B.  Man. 
Co.  3  Mason,  347,  368,  per  Story,  J.  But 
if  the  alienee  has  impaired  the  value  of 
the  premises,  the  widow  seems  to  be  en- 
titled to  dower,  according  to  the  value  at 
the  time  of  the  alienation.  Hale  v. 
James,  6  Johns.  Ch.  258. 

(p)  This  distinction  between  the  in- 
crease in  value  arising  from  extrinsic 
causes  and  that  arising  from  improve- 
ments made  by  the  alienee  of  the  hus- 
band, appears  to  have  been  first  taken 
by  Parsons,  C.  J.,  in  Gore  v.  Brazier,  3 
Mass.  523,  544.  It  was  adopted  in 
Thompson  v.  Marrow,  5  S.  &  R.  289, 
and,  after  much  consideration,  by  Stori/, 
J.,  in  Powell  v.  M.  &  B.  Manf.  Co.  3  Ma- 
son, 347,  365,  and  is  sanctioned  by  Chan- 
cellor Kent,  4  Kent's  Comm.  68.  See 
also  Shirtz  v.  Shirtz,  5  Watts,  225  ;  Dun- 
seth V.  The  Bank  of  U.  S.  6  Ohio,  76.  But 
it  has  been  held  otherwise  in  Todd  v. 
Baylor,  4  Leigh,  498,  and  in  New  York, 
under  a  statute.  Walker  v.  Schuyler,  10 
Wend.  480;  Humphrey  v.  Phinney,  2 
Johns,  484  ;  Dorchester  v.  Coventry,  11 
Johns.  510,  Shaw  r.  Wliite,  13  Johns. 
179. 


49S  THE   LAW   OF    CONTRACTS.  [PART  II. 

Where  an  action  is  brought  for  wrongful  interference  with 
real  estate,  or  with  the  occuj^ation  or  enjoyment  of  it,  and  the 
action  not  only  sounds  in  tort  but  is  for  actual  injury,  there 
it  seems  quite  settled,  and  illustrated  by  a  variety  of  cases  in 
this  country,  tiiat  compensation  may  be  recovered  by  way  of 
damages,  for  all  the  direct  and  natural  consequences  of  the 
injury,  (q) 

If  the  action  be  brought  on  the  common  covatiants  of  a 
deed,  the  rules  in  respect  to  compensation  seem  to  differ, 
according  as  it  is  one  or  another  of  these  covenants  which 
has  been  broken.  The  covenant  that  the  grantor  is  lawfully 
seised,  and  that  he  has  good  right  to  convey,  (which  has  been 
held  the  same  with  the  covenant  of  seisin,)  (r)  and  that  the 
premises  are  free  from  incumbrances,  are  broken  as  soon  as 
the  deed  is  executed,  if  the  grantor  has  no  seisin,  or  the  land 
be  encumbered,  (s)  And  if  an  action  is  brought  on  the  cove- 
nants, that  the  grantor  is  lawfully  seised,  although  the  plain- 
tiff may  prevail,  by  proving  the  actual  breach  of  the  covenant, 
as  that  the  grantor  had  no  seisin,  he  will  have,  it  is  said,  as 
damages,  only  the  price  he  has  paid,  and  interest ;  on  the 
ground  that  he  has  lost  no  land,  because,  if  the  covenants 
were  broken  when  the  deed  was  given,  it  follows  that  no  land 
ever  passed  to  him.  (/)  And,  if  it  is  made  to  appear  that  the 
plaintiff  has  lost  less,  as  by  a  purchase  at  a  low  price  of  an 

(7)  Tlic  general  principles,  in  regard  ert  upon  the  plaintiff's  land  and  with 
to  tlic  immediate  and  remote  conse-  clubs  drove  away  eight  negroes,  it  was 
quences  of  an  unlawful  act,  apply  to  held,  in  action  of  trespass  (juare  clausum 
this  class  of  cases.  See  ante,  p.  457,  y"rer//<,  that  the  plaintiff' could  recover  for 
note  (?•).  In  White  v.  Moseley,  8  Pick,  injuries  to  his  crops,  consequent  upon 
356 ;  in  an  action  of  trespass  quare  the  driving  away  of  his  negroes.  In 
c/«Msu;?i/;e^!7,  for  entering  tlie  plaintift''s  an  action  for  entering  upon  the  plain- 
close  and  destroying  a  mill-dam,  tlic  tiff's  close,  damages  may  be  recovered 
plaintiff  recovered  for  "the  interruption  for  debauching  the  plaintift''s  daughter 
to  the  use  of  the  mill  and  tlie  diminution  and  servant.  See  Bennett  r.  Allcott,  2 
of  the  i.laintilf's  profits  on  that  account."  T.  11.  IGC) ;  Keam  v.  Rank,  3  S.  &  K.  215. 
See  Dickinson  r.  Boyle,  17  Pick.  78.  In  (r)  AVillard  v.  TwitchcU,  1  N.  H. 
Barnum  u.  Vandusen,  10  Conn.  200,  177,458;  Ilickert  r.  Snyder,  9  Wend, 
where  the  defendant's  sheep  entered  416,421.  But  the  covenants  arc  not  in 
upon  the  plaintirt''s  land  and  communi-  all  respects  synonymous,  as  a  party  may 
cated  an  infectious  disease  to  his  sheep,  have  a  good  riglit  to  convey,  and  j-ct 
it  was  held  that  the  plaintiff  was  entitled  not  be  seised  of  a  legal  estate.  Rawlc 
to  recover,  in  an  action  of  trespass,  for  on  Covenants  for  Title,  127. 
the  loss  of  the  sheep  and  for  the  trouble  (s)  Sec  ante,  vol.  1,  p.  199. 
and  expense  in  taking  care  of  them.  (<)  Staats  v.  Ten  Eyck,  3  Caincs,  111 ; 
Sec  Anderson  v.  Buckton,  Strange,  Bickford  ??.  Page,  2  Mass.  455  ;  Marston 
192.  In  Johnson  v.  Combs,  3  Har.  &  v.  Hobbs,  2  Id.  433  ;  Caswell  v.  Wendell, 
Mclleu.  510,  where  the  defendant  enter-  4  Id.  108;  Smith  v.  Strong,  14  Pick. 


en.  VII.]  '  DAMAGES.  499 

outstanding  title,  he  will  recover  less.  (^/)  If  the  grantor  has 
acquired  a  title  which  will  enure  to  the  grantee  by  way  of 
estoppel,  the  damages  will  be  only  nominal,  (v)  But  it  has 
been  also  held,  that  a  release  of  land  without  warranty,  by 
the  grantee  to  a  third  person,  wall  not  prevent  the  grantee's 
recovery 'of  full  damages,  (iv) 

The  covenants  that  the  grantee  shall  have  quiet  enjoy- 
ment, and  that  the  grantor  will  warrant  and  defend  against 
all  lawful  claims,  are,  in  general,  broken  only  by  actual  ous- 
ter, (x)  and  then  such  damages  will  be  recovered,  according 
to  the  rule  laid  down  in  one  of  the  earliest  cases  on  this 
subject,  as  shall  give  to  the  injured  party  full  and  adequate 
compensation,  (y) 

But  if  we  suppose  a  case  where  land  is  conveyed  with 
warranty,  the  grantor  and  grantee  both  believing  the  title  to 
be  good,  and  there  is  no  taint  or  suspicion  of  fraud,  and  the 
land  rises  greatly  in  value,  either  by  the  increased  worth  of 
real  estate  in  that  vicinity,  or  by  expensive  improvements 
made  by  the  grantee,  and  then  the  grantee  is  ousted,  and 
comes  on  the  warranty  against  the  grantor,  the  question 
arises,  what  is  the  compensation  to  which  the  plaintiff  is  en- 
titled. It  is  obvious  that  an  error  has  been  made  by  which 
some  innocent  party  must  lose  much  ;  and  it  cannot  be  said 
that  this  error  is  to  be  imputed  as  a  wilful  fault  to  one  party 
more  than  to  the  other.  If  the  covenanter  is  bound  to  make 
good  the  value  of  all  that  the  grantee  loses,  "  no  man,"  says 
Kent,  "  could  venture  to  sell  an  acre  of  ground  to  a  wealthy 
purchaser,  without  the  hazard  of  absolute  ruin."  (z)  But  if 
not,  the  innocent  grantee  may  lose  by  a  failure  of  a  title,  for 

128;    Stubbs  v.  Pa<;c,  2   Grcenl.  378;         {u)  Tanner  v.  Livingston,  12  Wend. 

Mitchell  V.  Hazcii,  4  Conn.  495  ;  Waiting  83  ;   Spring  v.   Chase,  22  Maine,  505 ; 

17.  Nissley,  13  Penn.  St.  650,  655;  Sea-  Leflingwcll  i'.  Elliott,  8  Pick.  455,  10  Id. 

more  v.  Harlan,  3  Dana,  415 ;  Martin  v.  204  ;  Loomis  v.  Bedel,  1 1  N.  H.  74,  87. 

Long,  3  Mis.  276;    Clark  v.  Parr,   14         (u)  Baxter   v.   Bradbury,  20  Maine, 

Ohio,  118.   See  also  Parker  v.  Brown,  OQO. 

15  N.  H.  176 ;  Cox  v.  Strode,  2  Bibb,  "  (,'„)  Cornell  v.  Jackson,  3  Cush.  506. 

273.    In  an  action  for  the  breach  of  this         j,)^^,,.!^  ^n   Covenants   for  Title, 

covenant  damages  cannot  be  recovered  ^^o_o.,q 

for  improvements  or  the  increased  value       '  " 

of  the   land.     Staats  ;;.   Ten  Evck,  3         (.'/)  Gray  t;.  Briscoe,  Isoj.  142;  Pun- 

Caines,  111;  Pitcher  v.  Livingston.  4  combe  r.  Rudge,  Yelv.  139,  Hobart,  3, 

Johns.  1 ;  Bennett  v.  Jenkins,  13  Johns,  and  7iot.e,  in  Williams  s  edition. 

50;  Bender  v.   Stonebergcr,  4  Dallas,        (r)  Staats  u.  Ten  Eyck,  3  Caines,  114, 

436 ;  "Weiting  v.  Nissley,  13  Peun.  St.  605.  115. 


500 


THE   LAW   OF   CONTRACTS 


[part  II. 


the  warranty  of  which  he  had  paid  a  valuable  consideration, 
the  greater  part  of  the  value  of  his  estate.  In  some  States 
the  value  of  the  estate  at  the  time  of  the  conveyance  is  the 
measure  of  damages  ;  and  where  this  value  determines  in  the 
assessment  of  damages,  it  is  itself  determined,  generally,  at 
least,  by  the  amount  of  the  consideration  paid,  witR  interest. 
But  if  mesne  profits  have  been  received  by  the  grantee,  they 
will,  in  general,  be  held  equivalent  to  the  interest ;  and  then 
no  interest  will  be  allowed  to  the  grantee,  or  only  that  which 
is  commensurate  with  his  liability  for  the  mesne  profits  to 
the  holder  of  the  paramount  title;  and  therefore  he  can  re- 
cover interest  only  for  six  years,  (a)  In  some  States  the 
value  of  the  land  at  the  time  of  the  eviction,  is  the  measure 
of  damages,  (b)      There  seem  to  be  intimations  of  a  distinc- 


(«)  Wliere  the  value  of  the  land  at 
the  time  of  the  conveyance  is  taken  into 
account  in  assessing  damages,  that  value 
is  in  general  determined  by  the  amount 
of  tlic  consideration  paid,  and  interest  is 
allowed  upon  that  sum ;  hut  if  mesne 
profits  have  been  received  by  the  grantee, 
those  will  be  held  equivalent  to  the  in- 
terest, and,  in  that  case,  the  allowance 
of  interest  to  the  grantee  will  only  be 
commensurate  with  his  liability  for  the 
mesne  profits  to  the  holder  of  the  title 
paramount,  tliat  is,  he  can,  in  general, 
recover  interest  for  six  years  only.  Ben- 
nett V.  Jenkins,  13  Johns.  50;  Staats 
V.  Ten  Eyck,  3  Caines,  HI;  Baxter  v. 
Ryerss,  13  Barb.  267  ;  Clark  v.  Parr, 
14  Ohio,  118.  The  amount  of  the  con- 
sideration-money with  interest  has  been 
held  to  be  the  measure  of  damages,  in 
New  York ;  Pitcher  v.  Livingston,  4 
Johns.  1 ;  Bennett  v.  Jenkins,  13  Id.  50; 
Kinney  v.  Watts,  4  Wend.  38 ;  Kelly  v. 
Dutch  Church  of  Schenectadv,  2  Hill, 
105,  115;  Baxter  v.  Kyerss,  'l3  Barb. 
207  ;  —  in  Pennsylvania ;  Brown  v. 
iJickerson,  12  Penn.  St.  372;  Bender  v. 
Fromberger,  4  Dall.  436,  441 ;  King  v. 
Pyle,  8  S.  &  R.  166  ;  —  in  New  Jersey ; 
Holmes  V.  Sinnickson,  3  Green,  313; 
Stewart  v.  Drake,  4  Ilalst.  139,  142;  — 
in  Virginia;  Stout  v.  Jackson,  2  Rand. 
132;  Shrclkeld  r.  Fitzbugh,  2  Leigh, 
451,  463  ;  Jackson  v.  Turner,  5  Id.  1 19  ; 
llaffcy  V.  Birchetts,  1 1  Id.  83,  88  ;  contra, 
Mills  V.  Bell,  3  Call,  320;— in  South 
Carolira;  Purman  c.  Elmore,  2  Not.  & 
McCord,  189;  Wallace  v.  Talbot,  1 
McCord,  406,  408  ;  Pearson  v.  Davis,  1 
McMuU.  37  ;  —  Contra,  Tiber  v.  Parsons, 


1  Bay,  19;  Witherspoon  v.  Anderson, 

3  Dessau,  245:  —  in  North  Carolina; 
Phillips  V.  Smith,  1  Car.  Law  Repos. 
475;  Wilson  v.  Forbes,  2  Dev.  30;  — 
in  Ohio;  King  v.  Kerr,  5  Ohio,  154; 
Foote  r.  Burnet,  10  Id.  317;  Clark  v. 
Parr,  14  Id.  118;  —  in  Georgia;  Davis 
V.  Smith,  5  Geo.  274; —  in  Kentucky; 
Cox  V.  Strode,  2  Bibb,  273 ;  Hanson  v. 
Buckncr,  4  Dana,  251 ;  Pence  v.  Duvall, 
9  B.  Mon.  48  ;  —  in  Tennessee ;  Shaw 
V.  Wilkins,  8  Humph,  647,  651,  per  Mc- 
Kinney,  J. 

(b)  This  is  the  rule  adopted  in  Massa- 
chusetts ;  Gore  v.  Brazier,  3  Mass.  523 ; 
Bigelow  V.  Lorney,  4  Id.  512;  Morton 
V.  Babcock,  2  Mete.  510 ;  White  v.  Whit- 
nev,  3  Id.  81 ,  89 ;  —  in  ]Maine ;  Cushman 
V.  Blanchard,  2  Greenl.  266,  268  ;  Swett 
V.  Patrick,  3  Fairf.  9  ;  Hardy  v.  Nelson, 
27  Maine,  525 ;  Elder  v.  True,  32  Id. 
109;  —  in  Connecticut ;  Horsford  v. 
Wriglit,  Kirby,  3 ;  Sterling  v.  Peet,  14 
Conn.  245  ;  —  in  Vermont ;  Drury  v. 
Strong,  D.  Chip.  Ill ;  Park  j;.  Bates,  12 
Vt.  387.  The  question,  althougli  raised, 
is  undecided  in  New  Hampshire  and 
Indiana.  Loomis  v.  Bedel,  1 1  N.  H.  74, 
87 ;  Blackwell  v.  Justices  of  Lawrence 
Co.  2  Blackf.  143,  147.  See  Rawlc  on 
Cov.  for  Title,  pp. 319, e<sf7.(2d edition); 

4  Kent.  Comm.  474-480;  2  Greenl.  Ev. 
fj  204.  In  I>ouisiana  the  ((ucstion  has 
been  much  iliscussed  and  ditl'orcnt  rules 
have  prevailed  under  the  codes  of  1808 
and  1825.  See  Bissell  r.  Erwin,  13 
Louis.  147;  Edward  v.  Martin,  19  Id. 
294;  Morris  v.  Abat,  9  Id.  532  ;  13  Id. 
148,  note.  The  question  was  thoroughly 
discussed  in  tlie  late  case  of  Burrows  v. 


en.  VII.] 


DAMAGES. 


601 


tion  between  the  increased  worth  by  a  rise  in  the  market 
value  of  the  land,  which  has  cost  the  grantee  nothing,  and 
that  increase  caused  by  his  expenditure  in  aflixing  valuable 
buildings  or  other  improvements  to  the  land.  And  there  are 
some  reasons  in  favor  of  allowing  to  the  grantee,  as  damages, 
the  latter  kind  of  increase,  but  not  the  former,  (c)  It  has  also 
been  held,  that  the  purchase-money,  with  interest,  forms  the 
absolute  measure  of  the  damages,  (d)  If  the  failure  of  title 
extend  only  to  a  part  of  the  land,  the  question  has  been 
raised  whether  the  damages  should  be  recovered  for  the 
whole  land,  or  for  part  only,  and  then  whether  the  proportion 
which  the  quantity  of  the  land  lost  by  the  failure  bears  to  the 
whole,  should  be  considered,  or  the  proportion  which  its 
value  bears ;  but  the  principle  of  compensation  prevails,  and 
it  may  be  considered  as  established,  that  the  part  only  of 
the  land  of  which  the  title  has  failed,  is  to  be  paid  for,  (e) 


Peirce,  6  La.  Ann.  297,  and  it  was  held, 
AW,  J.,  dissenting,  that  the  increased 
value  at  the  time,  of  eviction  ought  not 
to  he  recovered.  The  grantee  is  also 
entitled  to  recover  the  costs  of  the  suit 
by  which  he  has  been  evicted.  Pitcher 
V.  Livingston,  4  Johns.  1 ;  Baxter  v. 
Ryerss,  13  Barb.  267  ;  Holmes  v.  Sin- 
nickson.  3  Green.  (N.  J.)  313  ;  Cushman 
V.  Blanchard,  2  Greenl.  266;  Swett  v. 
Patrick,  3  Fairf.  9. 

(c)  Staats  V.  Ten  Eyck,  3  Caines,  117  ; 
Pitcher  r.  Livingston,  4  Johns.  13,  per 
Spencer,  J. ;  Bender  v.  Frombcrgcr,  4 
Dall.  442;  Martin  v.  Atkinson,  7  Geo. 
228.  See  arite,  p.  497,  note  (/).)  But 
there  seems  to  be  no  adjudication  in 
favor  of  applying  the  distin(;tion  referred 
to  in  the  text  to  this  class  of  cases. 

{(I)  In  most  of  the  cases  cited  supra, 
note  ((f),  the  consideration-money  with 
interest  and  the  costs  were  held  to  be 
the  measure  of  damages,  but  in  Shrel- 
keld  V.  Fitzhugh,  2  Leigh,  451,  it  was 
suggested  that  in  some  cases  it  might 
be  shown  that  the  actual  value  of  the 
land  was  greater  than  the  price  paid. 
See  4  Kent's  Com.  476. 

(e)  In  Morris  v.  Phelps,  5  Johns.  49, 
the  title  to  a  part  of  the  premises  failed, 
and  it  was  urged  tliat  the  plaintiff  ought 
to  recover  the  whole  consideration-mo- 
ney, but  the  court  laid  down  the  rule  in 
the  text.  Kent,  Ch.  J.,  said  :  "  This  is  an 
old  and  well-settled  rule  of  damages  : 
thus,  in  the  case  of  Beauchamp  v.  Dam- 


ory,  Year  Book,  29  Ed.  IIL  4,  it  was 
held,  by  D'llile,  J.,  that  if  one  be  bound 
to  warranty,  he  warrants  the  entirety, 
but  he  shall  not  render  in  value  but  for 
that  which  was  lost.  In  13  Ed.  IV.  3, 
(and  which  case  is  cited  in  Bustard's 
case,  9  Co.  60,)  the  same  principle  was 
admitted,  and  it  was  declared  and  agreed 
to  by  the  court,  that  in  exchange,  where  a 
want  of  title  existed  as  to  part,  the  party 
evicted  might  enter  as  for  a  condition 
broken,  if  he  chose ;  but  if  he  sued  to 
recover  in  value,  jie  siiould  recover  only 
according  to  the  value  of  the  part  lost. 
Though  the  condition  be  entire,  and  ex- 
tends to  all,  yet  it  was  said  that  the 
warranty  upon  the  exchange  might  sev- 
erally extend  to  part.  So  in  the  case 
of  Gray  v.  Briscoe,  Noy's  K.  142,  B. 
covenanted  that  he  was  seized  of  Black- 
acre  in  fee,  whereas  in  truth  it  was  copy- 
hold land  in  fee,  according  to  the  cus- 
tom ;  and  the  court  said  that  the  jury 
should  give  damages  according  to  the 
difference  in  value  between  fee  simple 
land  and  copyhold  land."'  Sec  also 
Guthrie  v.  Puyslcy,  12  Johns.  126.  In 
Johnson  I'.  Nyce,*17  Ohio,  66,  it  was 
said  that,  in  an  action  on  a  covenant  of 
warranty  broken  by  tlie  assignment  of 
dower,  damages  would  be  given  to  the 
extent  that  the  value  of  the  estate  is  di- 
minished by  carving  out  the  life-estate, 
taking  one  third  of  the  consideration- 
money  to  be  the  value  of  one  third  of 
the  fee  simple  interest.     See  Ilickert  v. 


502 


THE   LAW   OF   CONTRACTS. 


[part  II. 


and  that  in  proportion  to  its  value,  and  not  its  mere  quan- 
tity.  (/) 

If  the  action  is  brought  upon  the  covenant  that  the  land  is 
free  from  encumbrances,  it  will  be  necessary  to  consider  the 
nature  and  effect  of  the  encumbrances.  If  they  consist  of 
mortgages  or  attachments,  or  other  liens  of  like  kind,  it  seems 
to  be  well  settled  that  the  grantee  may  pay  off  these  encum- 
brances, and  may  then  recover  all  that  he  expended  in  this 
way,  from  the  grantor;  (g-)  and  may  even  recover  the  amount 
of  money  paid  by  him  to  remove  these  encumbrances,  after 
the  action  has  been  commenced,  (h) 


Snyder,  9  Wend.  416  ;  Michael  w.  Mills, 
1 7  Ohio,  601  ;  Gray  v.  Briscoe,  Noy,  172; 
Rawle,  on  Cover,  for  Title,  2d  ed.  p. 
113  et  seq. 

if)  In  Morrison  v.  Phelps,  5  Johns. 

49,  56,  Kent,  Ch.  J.,  in  delivering  the 
opinion  of  the  court,  said  :  "  Another 
([uestion  in  this  case  is,  whether  the  de- 
fendant ought  not  to  have  been  permit- 
ted to  show  that  tiie  lands,  in  the  deed  of 
1795,  of  which  there  was  a  failure  of 
title,  wereof  inferior  quality  to  the  other 
lands  conveyed  by  the  same  deed.  Tiiis 
ajipears  to  be  reasonable  ;  and  the  rule 
would  operate  with  equal  justice  as  to 
all  the  parties  to  a  conveyance.  Sup- 
pose a  valuable  stream  of  water  with 
expensive  improvements  upon  it,  with 
ten  acres  of  adjoining  barren  land,  was 
sold  for  10,000  dollars,  and  it  should 
afterwards  appear  that  the  title  to  the 
stream  with  the  improvements  on  it 
failed,  but  remained  good  as  to  the  res- 
idue of  the  land,  would  it  not  be  unjust 
that  the  grantee  should  be  limited  in 
damages,  under  his  covenants,  to  an  ap- 
portionment according  to  the  number 
of  acres  lost,  when  the  sole  inducement 
to  the  purchase  was  defeated  ;  and  the 
whole  value  of  the  purchase  had  failed  ? 

50,  on  the  other  hand,  if  only  the  title 
to  the  nine  barren  acres  failed,  the  vendor 
would  feel  the  weight  of  the  extreme  in- 
justice, if  he  was  obliged  to  refund 
nine  tenths  of  the  consideration-money. 
This  is  not  the  rule  of  assessment.  The 
law  will  apportion  the  damages  to  the 
measure  of  value  between  the  land  lost, 
and  tlie  land  preserved."  See  also  Cor- 
nell V.  Jackson,  3  Cush.  509  ;  Dickens 
V.  Shepherd.  3  Murph.  526.  In  King 
r.  Tyle.  8  S.  &  K.  16G,  this  rule  was 
ajipiicd  where  the  sale  was  fraudulent, 
but  the  court  did  not  decide  what  would 


be  the  rule  if  the  sale  vferefair.  There 
are  cases  which  hold  that  the  average 
value  is  to  be  recovered  for  the  part  to 
which  the  title  has  failed.  Nelson  v. 
Mathews,  2  Hen.  &  Munf.  164 ;  Nelson 
V.  Carrington,  4  Munf  332. 

{[/)  Uelavergne  v.  Norris,  7  Johns. 
358;  Hall  f.  Dean,  13  Id.  105;  Stan- 
nard  v.  Eldridge,  16  Johns.  254  ;  Pres- 
cott  V.  Trueman,  4  Mass.  627;  Hender- 
son V.  Henderson,  14  Mis.  151. 

(h)  Lefhngwell  v.  Elliott,  10  Pick. 
204 ;  Brooks  v.  Moody,  20  Id.  474  ; 
Kelly?.'.  Low,  18  Maine,  244  ;  Pom- 
eroy  v.  Burnett,  8  Blackf.  143  ;  together 
with  reasonable  expenses  incurred  in 
extinguishing  the  encumbrance,  ex- 
clusive of  counsel  fees.  Leffingwell  v. 
Elliott.  But  the  grantee  cannot  re- 
cover beyond  the  amount  of  the  consid- 
eration-money and  interest.  Dinnaick 
V.  Lockwood,  10  Wend.  142  ;  Foote  v. 
Burnett,  10  Ohio,  317;  4  Kent's  Com. 
476.  But  in  those  States  in  which, 
in  action  for  a  breach  of  the  cove- 
nant of  warranty,  the  measure  of  dam- 
ages is  held  to  be  the  value  of  the 
estate  at  the  time  of  eviction,  it  seems 
that  the  grantee  may  recover  what  he 
has  paid  to  extinguish  encumbrances,  to 
the  extent  of  the  value  of  the  estate  at 
the  time  of  payment.  Norton  v.  Bab- 
cock,  2  Mete.  510  ;  White  v.  Whitney, 
3  Id.  81  ;  Kawle  on  Cov.  for  Title,  (2d 
edition,)  161  ;  Sedgwick  on  Dam.  180. 
In  Elder  r.  True,  32  Maine,  104,  it  was 
held  that  where  land  is  encumbered  by 
a  mortgage,  the  grantee  may  redeem  or 
not  at  his  election,  but,  if  evicted,  he 
may  recover  the  value  of  the  land  in- 
cluding his  improvements,  even  if  the 
value  exceed  the  amount  due  on  the 
mortgage.  But  see  White  r.  Whitney,  3 
Mete.  81;  Douahoe  r.  Emery,  9  Mete".  63. 


CH.  VII.]  DAMAGES.  503 

But,  if  he  does  not  discharge  the  encumbrances,  and 
brings  his  action  before  ouster  or  any  actual  injury  springing 
from  them,  although  the  action  is  sustainable,  because  the 
existence  of  the  encumbrances  works  a  breach  of  the  cove- 
nant, yet  he  can  recover  only  nominal  damages,  (i)  Still,  if 
the  encumbrances  are  of  a  permanent  nature,  such  as  inter- 
fere with  the  actual  enjoyment  of  the  estate,  and  such  that 
the  grantee  cannot  remove  them  by  his  own  act,  as  for  in- 
stance, a  lease  of  the  whole  or  a  part  of  the  premises,  then  it 
would  seem  that  actual  compensation  may  be  recovered,  and 
that  there  is  no  rule  which  should  prevent  this  from  being 
full  and  adequate,  {j )  If  the  action  is  brought  on  a  con- 
tract to  sell,  and  against  the  party  who  had  promised  to  sell 
and  had  failed  to  do  so,  many  authorities  have  held  that  the 
result  may  depend  upon  the  cause  of  the  failure.  For  if  the 
intended  vendor  was  honest,  and  was  prevented  from  making 
the  sale  by  causes  which  he  did  not  foresee,  and  could  not 
control,  then  the  plaintiff  recovers  only  nominal  damages;  or, 
if  he  has  paid  the  price,  that  sum  with  interest,  adding  per- 
haps, in  both  cases,  his  expenses  in  investigating  the  title,  or 
for  similar  purposes,  (k)     But  if  the  proposed  vendor  was  in 

(i)    Prescott  V.  Trueman,   4   Mass.  .  .  .    The  rule  is,  that  for  such  encum- 

627;  Wyman  v.  Ballard,  12   Id.  304 ;  brances  as  a  covenantee  canuot  remove, 

Tufts  c.  Adams.  8  Pick.  547;  Herrick  he  shall  recover  a  just  compensation  for 

i'.  Moore,  19  Maine,   313;  Delavergne  the  real  injury  resulting   from  the  en- 

i'.  Norris,  7  Johns.  358;  Hall  u.  Dean,  cumbrance.     Though  it  seems  desirable 

13  Id.  105;  Stanard  ?;.  Eldridge,  16  Id.  to  have  as   definite    and   precise   rules, 

254;  Whistler  y.   Hicks,  5  Blackf.  100 ;  upon   the   subject  of  damages,  as    are 

Davis  V.  Lyman,   6  Conn.  254.    Pay-  practicable,  it  seems  impossible  to  estab- 

ments  for  the  discharge  of  encumbrances  lish  any  more  precise  general  rule  in  this 

cannot  be  recovered  unless  specially  al-  class  of  cases."   If  the  grantee  is  perraa- 

leged.  De  Forest  u.  Leete,  16  Johns.  122.  nently  kept  out  of  the  estate,  by  reason  of 

(/)  Prescott  I'.  Trueman,  4  Mass.  627,  the  encumbrances,  the  purchase-money 

630;  Harlow  v.  Thomas,  15   Pick.   66,  and  interest  are  the  measure  of  damages. 

69;  Hubbard  v.  Norton,  10  Conn.  422,  Chapel  v.  Bull,  17  Mass.  213;  Jenkins 

435.     In  Batchelder  v.  Sturgis,  3  Cush.  v.  Hopkins,  8  Pick.  346  ;  so  also,  in  case 

205,  Fletcher,  J.,  in  giving  the  opinion  of  of  eviction,  Waldo  v.  Long,    7  Johns, 

the  court,  said:  "In  New  York,  in  the  173;  Martin  v.  Atkinson,  7  Geo.  228; 

case  of  Rickert  v.  Snyder,  9  Wend.  423,  Patterson  v.  Stewart,  6  W.  &   S.  527. 

it  was  held,  that  when  the   covenant  But  see  Chapel  v.  Bull :  Jenkins  v.  Hop- 

against  encumbrances    is    broken,    by  kins,  and  sty;?'a,  p.  498,  note  (<).      In  an 

reason  of  an  unexpired  term,  which  is  action  on   a  covenant  to  pay  off  en- 

the  present  case,  the  rule  of  damages  is  cumbrances,  the  amount  of  the  encum- 

the  annual  .value  of  the  estate,  or  the  brances  is  held  the  measure  of  damages, 

annual  interest  on  the  purchase-money.  Lethbridge  v.  Mytton,  2  B.  &  Ad.  772. 
This  rule  may  do  justice  in  some,  per-         (I:)  Flureau  v.  Thomhill,   2   W.  BI. 

haps  in  many  oases,  but  this  court  is  not  1078;   Walker  v.   Moore,   10  B.  &  C. 

prepared  to  adopt  it  as  a  general  rule.  416 ;  Worthington  v.   Worthington,  8 


504 


THE   LAAV   OF    CONTRACTS. 


[PAET   II. 


fault,  and  either  did  know,  or  siiould  have  known,  that  he 
could  not  do  what  he  undertook  to  do,  here  substantial  dam- 
ages may  be  given,  including  compensation  for  any  actual 
loss,  as  by  the  increased  value  of  the  land;  (/)  and  this  has 


B.  C.  134;  Baldwin  r.  Jlunn,  2  Wend. 
389;  Peters  v.  McKcon,  4  Den.  546; 
Tliomi)Son  v.  Gutln-ic,  9  Leigh,  101  ; 
Combs  V.  Tarlton.  2  Dana,  464  ;  Allen 
V.  Anderson,  2  Bibb,  41.5;  Stewart  v. 
Noble,  1  Greene,  ( Iowa, )  26.  Sec  Fletcher 
V.  Button,  6  Barb.  (UO.  This  rule  appears 
to  be  estal)lislied  in  England  and  gener- 
ally prevails  ia  tiiis  country;  but  there 
appears  to  be  some  diversity  in  the  rca- 
soning  ujjon  which  it  is  based.  In  Eng- 
land the  rule  a]ipears  to  be  sustained  on 
the  ground  that  tin;  parties  must  liavc 
contcniiUated  the  ditlieulties  attendant 
upon  the  conveyance,  and  hence  the 
piaintit}'  is  allowed  to  recover  the  cx- 
l^cnse  of  investigating  the  title,  but  no 
other  expenses,  on  the  ground  that  he 
is  not  justilied  in  taking  any  other  step 
until  he  is  sure  of  a  good  title.  In 
Flureau  v.  Thornhill,  Bhwkstone,  J.,  said, 
■'  These  contracts  are  merely  upon  con- 
dition, fVei|uently  expressed,  liut  always 
implied,  that  tlie  vendor  has  a  good 
title."  In  Walker  v.  Moore  the  land 
was  not  conveyed  on  account  of  a  defect 
in  the  title.  Tlie  ]ilaintitl'  liad  contracted 
to  resell,  and  demanded  damages  for  the 
loss  of  profits  on  his  contracts  of  resale, 
for  the  expense  attending  those  resales, 
and  for  tlie  amount  for  which  he  was 
liable  to  tlie  subcontractors  for  examin- 
ing the  title,  aiul  the  expense  incurred  by 
himself  for  the  same  purpose.  He  was 
allowed  to  recover  only  his  own  expense 
in  examining  the  title.  Parke,  J.,  said. 
"  It  is  usual  and  reasonable,  before  any 
expense  is  incurred,  to  compare  the 
abstract  with  the  deeds ;  and  without 
giving  any  opinion  as  to  the  riglit  of  the 
plaintiff  to  resell  before  he  iiad  obtained 
a  conveyance  and  actual  possession,  I 
tliink  he  cannot  recover  those  expenses 
which  he  has  sustained  by  reason  of  his 
having  contracted  to  resell  the  premises 
before  he  had  taken  the  trouble  to  as- 
certain whether  the  abstract  was  correct 
or  not."  B'l/jlcif,  >!.,  su])posed  he  might 
have  recovered  the  ex]jcnsc  attending 
the  resale,  had  that  contract  been  entered 
into  after  i)roi)cr  investigation.  He  said, 
"  If  it  [the  abstract]  had  been  examined 
with  the  deeds  and  found  correct,  the 
plaintiff  might  perha])s  have  been  justi- 


fied in  acting  upon  the  faith  of  having 
the  estate ;  and  if  after  that  time  he  had 
made  a  subcontract,  I  think  he  would 
have  been  entitled  to  recover  the  ex- 
penses attending  it,  if  it  failed  in  conse- 
quence of  any  defect  in  the  title  of  his 
vendor."  The  plaintiff",  having  failed  in 
a  bill  in  equity  brought  to  enforce 
sjjecilic  performance  of  a  contract  to  sell 
land,  because  the  defendant  could  not 
give  title,  was  not  allowed  to  recover  his 
costs  in  the  equity  suit,  in  an  action  at 
law.  Maiden  v.  Tyson,  11  Q.  B.  293. 
In  this  country, although  nearly  the  same 
rule  is  in  some  of  the  States  adopted, 
(differing  perhaps  from  the  English  in 
the  fact  tliat  tiie  expense  of  investigating 
the  title  is  not  allowed.)  it  is  based  upon 
the  analogy  between  this  class  of  cases 
and  actions  upon  covenants  for  title.  As 
we  have  seen,  in  those  cases,  the  meas- 
ure of  damages  where  there  has  been  an 
eviction,  is  in  most  of  the  States,  the 
amount  of  the  consideration-money,  with 
interest ;  so  in  actions  upon  this  class  of 
contracts  the  same  rule  has  lieen  adopted. 
In  Baldwin  v.  IMunn,  Sutherland,  J.,  said: 
"  In  an  action  on  the  covenant  against  en- 
cumbrances in  a  deed,  the  jilaintiff  can 
recover  only  the  amount  paid  by  him  to 
extinguish  the  encumbrance  ;  but  if  he 
has  paid  notliing,  no  matter  wliat  the 
amount  of  the  lien  may  be,  he  can  re- 
cover nominal  diimai/fs  onhj.  Delavergnc 
V.  Norris,  7  Johns.'  358  ;"  4  ]\Iass.  627  ; 
13  Johns.  105.  If  these  principles  are 
just,  in  relation  to  the  covenant  of 
general  warranty,  and  of  quiet  enjoy- 
ment, and  against  encumbrances,  1  do 
not  perceive  why  they  are  not  equally 
api)licable  to  the  covenant  to  convey, 
where  the  covenantor  has  acted  in  good 
faith,  and  refuses  to  convey  because  his 
title  has  in  fact  failed.  The  reasons  which 
are  urged  with  so  much  force,  by  Ch.  J. 
Kent,  m  Staats  v.  Ten  Eyck,  (3  Caincs, 
111,  115,)  in  favor  of  the  rule  of  dam- 
ages adopted  in  that  case,  certainly  ap- 
ply with  equal  force  to  tiie  case  in  ques- 
tion." Sec  the  other  American  cases 
cited  above. 

(/)  See  authorities  cited  in  the  pro- 
ceding  note,  and  Bitncr  i\  Brough,  11 
Tenn.  St.  127;  ilandley  i-.   Chambers, 


en.  VII.] 


DAMAGES. 


505 


been  extended  to  cases  where  the  vendor  acted  in  good  faith, 
but  knew  that  he  had,  at  the  time,  no  title  ;  as  where  the  ven- 
dor offered  for  sale  at  public  auction,  land  which  he  had  con- 
tracted with  a  third  person  to  buy  from  him,  and  failed  to 
buy,  only  on  account  of  the  inability  of  that  third  person  to 
make  a  conveyance  to  him.  (m)  In  this  respect  the  rule 
would  be  distinguished  from  that  applicable  to  actions  for 
non-sale  of  chattels,  where  the  plaintiff  recovers  compensa- 
tion for  all  actual  damages,  without  any  reference  to  the 
good  or  bad  faith  of  the  vendor.  But  the  Supreme  Court 
of  the  United  States  have  refused  to  adopt  this  distinction, 
on  the  ground  that  the  reason  of  the  rule  as  to  chattels  ap- 
plies with  equal  force  to  bargains  respecting  land  ;  this  reason 
being,  that  if  a  vendor,  under  such  circumstances,  could  es- 
cape with  nominal  damages,  there  would  be  danger  that  he 
might  refuse  to  complete  the  sale  for  the  purpose  of  retaining 
to  himself  the  enhanced  value,  (n)     If  on  such  a  contract  the 


1  Litt.  358  ;  Blanchavd  v.  Ely,  21  Wend. 
346,  347,  per  Coiven,  J. ;  Noursc  v. 
Barns,  1  T.  Ray.  77.  So  where  the  party 
having  title  refuses  to  convey  it ;  Driggs 
V.  Dwight,  17  Wend.  71  ;  Baldwin  v. 
Munn,  2  Id.  399,  406  ;  or  having  title 
at  the  time  of  the  agreement,  afterwards 
disables  himself  from  completing  it,  by 
selling  the  land  to  a  third  party ;  Patrick 
r.  McConuel,  2  Bibb,  47  ;  Fisher  v.  Kay, 

2  Id.  434,  440;  Wilson  v.  Spencer,  11 
Leigh,  261 ;  or  at  the  time  of  the 
agreement  knew  he  had  no  title  ;  Mc- 
Connell  v.  Uunlap,  Hardin,  41. 

(m)  Hopkins  v.  Grazebrook.  6  B.  &  C. 
31.  See  this  case  cited  in  Walker  v. 
Moore,  10  B.  &  C.  416,  and  in  Fletcher 
V.  Button,  6  Barb.  6.50.  The  doctrine 
of  Hopkins  v.  Grazebrook,  was  affirmed 
in  Eobinson  v.  Ilarman,  1  Exch.  850. 
Parke,  B.,  said:  "  The  rule  of  the  com- 
mon law  is,  that  where  a  party  sustains 
a  loss  by  reason  of  a  breach  of  contract, 
he  is,  so  far  as  money  can  do  it,  to  be 
placed  in  the  same  situation,  with  respect 
to  damages,  as  if  the  contract  had  been 
performed.  The  case  of  Flureau  v. 
Thornhill  qualified  that  rule  of  the  com- 
mon law.  It  was  there  held,  that  con- 
tracts for  tlie  sale  of  real  estate  arc 
merely  on  condition  that  the  vendor  has 
a  good  title ;  so  that,  when  a  person  con- 


tracts to  sell  real  property,  there  is  an 
implied  understanding  that,  if  he  fail  to 
make  a  good  title,  the  only  damages  re- 
coverable are  the  expenses  which  the 
vendee  may  be  put  to  in  investigating 
the  title.  The  present  case  comes  within 
the  rule  of  the  common  law,  and  I  am 
unable  to  distinguish  it  from  Uopkins  v. 
Grazebrook.  So  it  has  been  held  in  this 
country  that,  where  the  agreement  is 
that  a  third  person  shall  convey  land, 
the  measure  of  damages  is  the  value  of 
the  land  at  the  time  when  it  should  have 
been  conveyed.  Dyer  v.  Dorsey,  1  G. 
&  J.  440;  Pinkston  v.  Hine,  9  Ala.  252. 
But  see  Tyrer  v.  King,  2  C.  &  K.  149. 

{n)  Hopkins  v.  Lee,  6  Wheat.  109. 
See  also  Cannell  r.  M' Clean,  6  H.  &  J. 
297;  Nichols  v.  Freeman,  11  Ired.  99 ; 
Bryant  v.  Ilambruck,  9  Geo.  133; 
Whiteside  v.  Jennings,  19  Ala.  784; 
Hill  V.  Hobart,  16  Maine,  164  ;  Warren 
V.  Wheeler,  21  Id.  484.  In  some  of 
these  cases  the  doctrine  of  those  Amer- 
ican cases,  cited  supra,  note  (/.:),  that 
actions  on  a  covenant  to  convey,  are  so 
far  analogous  to  those  upon  covenants 
for  title,  that  the  damages  should  be 
measured  by  the  same  rule,  is  rejected. 
In  Nichols  v.  Freeman,  the  defendant 
was  prevented  from  giving  a  good  title 
by  a  levy  of  execution  upon  the  land,  and 


VOL.  II. 


43 


506 


THE   LAW   OF   CONTRACTS. 


[part  II. 


proposed  vendee  is  sued,  if  he  has  taken  the  land,  the  meas- 
ure of  damages  is,  of  course,  the  price  with  interest;  if  he  has 
neither  taken  the  land  nor  paid  the  price,  in  England  the 
plaintiff  receives  only  nominal  damages,  unless  the  land  has 
fallen  in  value,  or  he  has  otherwise  suffered  actual  injury, 
on  the  ground  that  if  he  recovered  the  full  price,  he  would 
have  that  and  the  land  too  ;  because  the  recovery  cannot 
have  the  effect  of  passing  the  fee  of  the  land,  (o)  In  this 
country,  some  cases  have  thrown  doubt  on  this  rule,  but  upon 
the  whole  we  think  it  pretty  well  established,  (p) 


there  appears  to  have  been  no  fraud  on 
his  part.  The  value  of  the  land  at  the 
time  of  the  breach  was  regarded  as  the 
measure  of  damages.  Pearson,  J.,  said : 
"  Our  attention  has  been  called  to  the 
fact,  that  in  the  action  for  a  breach  of  a 
covenant  of  quiet  enjoyment,  the  measure 
of  damage  is,  the  price  paid  for  the  land, 
which  is  taken,  as  between  the  i)arties, 
to  be  the  true  value.  .  .  The  analogy 
does  not  sustain  the  position  for  which 
it  was  invoked  ;  because  the  rule  of  dam- 
age in  that  action  is  founded  on  peculiar 
reasons.  Tlic  covenant  for  quiet  en- 
joyment is  a  substitute  for  the  old  real 
warranii/,  the  remedy  upon  which  was 
by  voucher,  and  if  the  demandant  re- 
covered, the  tenant  had  judgment  against 
the  voucher  for  other  lands  of  equal 
value."  See  also  the  very  able  decision 
of  Buchanan,  Ch.  J.,  in  Cannell  v. 
M'Clean.  And  even  in  New  York  some 
doubt  seems  to  have  been  thrown  upon 
the  rule  laid  down  in  Baldwin  v.  Munn, 
cited  sujini,  note  (k),  in  the  late  case  of 
Fletcher  r.  Button,  6  Barb.  646  ;  where, 
under  a  verbal  contract,  land  is  to  be 
conveyed  in  consideration  of  a  specific 
sum  payable  in  work,  the  vendee  who 
has  performed  the  work,  may  consider 
the  agreement  as  a  nullity  and  recover 
the  value  of  his  work,  not  exceeding  the 
sum  specified,  with  interest;  and  he  can 
only  resort  to  evidence  of  the  value  of 
the  land  as  a  measure  of  damages,  when 
no  sum  is  specified.  King  r.  Brown,  2 
Hill.  48.');  Burlingamci.'.  Burlingame,  7 
Cow.  92 ;  Bohr  v.  Kindt,  3  \V.  &  S. 
563  ;  Jack  t'.  McKce,  9  Penn.  St.  235 ; 
Basil  V.  Bash,  9  Id.  261.  SeeBoardman 
V.  Keeler,  21  Vt.  84. 

(o)  In  Hawkins  v.  Keep,  3  East,  410 ; 
in  Goodisson  v.  Nunn,  4  T.  R.  761,  and 
in  Glasebrook  v.  Woodrow,  8  Id.  366, 
it  Bcems  to  have  been  assumed  that  the 


vendor,  on  tender  of  a  conveyance, 
could  recover  the  amount  of  the  pur- 
chase-money. But  in  the  late  case  of 
Laird  v.  Tim,  7  M.  &  W.  474,  where 
the  vendor  had  oftcred  to  execute  a 
conveyance,  and  was  '•  in  the  same  situ- 
ation for  the  purpose  of  recovering  dam- 
ages for  the  non-payment  of  the  price, 
as  if  all  had  been  done  by  him,"  it  was 
said  by  Parke,  B.,  in  delivering  the 
opinion  of  the  court :  "  The  measure  of 
damages,  in  an  action  of  this  nature,  is 
the  injury  sustained  by  the  plaintiff  by 
reason  of  the  defendant's  not  having  per- 
formed their  contract.  Thecjuestion  is, 
how  much  worse  is  the  plaintiff  by  the 
diminution  in  the  value  of  the  land,  or 
the  loss  of  the  purchase-money,  in  con- 
sequence of  the  non-performance  of  the 
contract.  It  is  clear  that  he  cannot 
have  the  land  and  its  value  too.  A  party 
cannot  recover  the  full  value  of  a  chattel, 
unless  under  circumstances  which  im- 
port that  the  property  has  passed  to  the 
defendant,  as  in  the  case  of  goods  sold 
and  delivered,  where  they  have  been 
absolutely  parted  with,  and  cannot  be 
sold  again." 

(/))  In  Franchot  v.  Leach,  5  Cowen, 
506,  the  jur}-,  under  direction  of  the 
judge,  found  the  consideration-money 
an(l  interest  as  damages  for  the  vendee's 
breach  of  his  contract,  and  no  objection 
seems  to  have  been  made  to  the  direction. 
In  Alna  v.  Plummel,  4  Greenl.  258,  the 
defendant  having  bought  a  pew  at  auc- 
tion, and  refused  a  deed  when  tendered 
to  him,  it  was  held  that  the  measure  of 
damages  was,  "  the  price  agreed  to  be 
paid  for  the  })ew  by  tiie  defendant,  who 
Avill  be  entitled  to  the  deed  whenever 
he  chooses  to  accept  it."  This  doctrine 
was  approved  in  Shannon  ?•.  ("omstock, 
21  Wend.  457,  460,  and  in  Williams  v. 
Field,  cited  in  Sedgwick  on  Damages, 


CH.   VII.]  DAMAGES.  507 

If  the  contract  be  to  give  land  for  work  and  labor,  this 
may  be  treated  as  for  so  much  money  in  work  and  labor. 

If  the  action  be  brought  on  the  usual  covenants  in  leases, 
the  rule  is,  as  before,  compensation.  Hence  a  tenant  for  life 
of  an  estate  leased  by  him,  can  recover  only  such  damages  for 
breach  of  covenant  by  the  lessee,  as  are  proportionate  to  the 
injury  done  to  the  life-estate,  {q)  And  the  action  may  be 
brought  on  the  covenant  to  repair,  before  the  end  of  the  term, 
because,  although  a  tenant  has,  in  one  sense,  the  whole  term 
in  which  to  repair,  yet  the  covenant  to  repair  is  broken  as 
soon  as  repairs  ought  to  be  made,  and  are  not  made,  (r) 
By  parity  of  reasoning  the  same  action  might  be  brought 
against  a  landlord,  when  he,  in  the  same  way,  failed  to  dis- 
charge his  obligations. 

A  covenant  to  repair,  or  to  keep  the  premises  in  good  and 
sufficient  repair,  does  not  mean,  only,  that  they  must  be  kept 
in  the  same  repair  in  which  they  were  when  the  tenant  took 
them,  for  this  may  not  be  good  repair;  but,  it  has  been  held 
that  the  jury  might  properly  take  into  consideration  the  con- 
dition of  the  premises  at  the  commencement  of  the  lease,  in 
order  to  ascertain  what  was  meant  by  the  words,  repair,  or 
good  repair,  as  used  in  that  lease,  (s) 

p.  192,  and  appears  to  be  now  well  set-  tains  a  covenant  by  a  tenant  to  keep 
tied  ill  Maine  ;  Oatman  v.  Walker,  33  the  premises  in  repair,  and  a  covenant 
Maine,  67.  But  see  Sawyer  v.  Mclntyrc,  to  insure  them  for  a  specific  sum  against 
18  Verm.  27.  fire  ;  if  they  are  burnt  down,  his  liabili- 
(q)  Hence  a  tenant  for  life  of  an  es-  ty  on  the  former  covenant  is  not  limited 
tate  leased,  can  only  recover  such  dam-  to  the  amount  of  the  sum  to  be  insured 
ages  for  breach  of  covenant  by  the  under  the  latter.  Digby  v.  Atkinson,  4 
lessee,  as  are  commensurate  with  tlie  Camp.  275.  In  Dewint  v.  Wilstc,  9 
injury  done  to  the  life-estate.  Evelyn  Wend.  325,  "where  a  party  took  a  lease 
V.  Raddish,  Holt,  543 ;  McKeen  v.  Gam-  of  a  ferry,  and  covenanted  to  maintain 
mon,  33  Maine,  187,  192.  In  New  and  keep  the  same  in  good  order,  and 
York  the  same  rule  of  damages  is  ap-  instead  of  so  doing,  diverted  travellers 
plied  in  actions  on  covenants  for  quiet  from  the  usual  landing  to  another  land- 
enjoyment  in  leases  as  in  conveyances  of  ing  owned  by  himself,  by  means  where- 
the  fee  simple.  The  lessee  is  allowed  of  a  tavern-stand  belonging  to  the 
costs  incurred  in  defending  his  title  and  plaintiff,  situate  on  the  first  landing, 
the  rents  he  has  paid  during  the  time  he  was  so  reduced  in  business  as  to  become 
is  liable  for  mesne  profits  to  the  true  tcnantlcss,  it  was  held,  in  an  action  by 
owner,  with  interest  thereon:  but  he  the  landlord  for  breach  of  the  covenant, 
can  recover  nothing  for  improvements,  that  he  might  assign,  and  was  entitled 
or  the  increased  value  of  the  premises,  to  recover  as  damages  the  loss  of  rent 
Kinney  v.  Watts,  14  Wend.  38  ;  Moak  of  the  tavern-stand." 
V.  Johnson,  1  Hill,  99  ;  Kelly  v.  Dutch  (r)  Luxmore  v.  Robson,  1  B.  &  Aid. 
Church  of  Schenectedy,  2  Hill,  105,  584;  Scheitfeln  v.  Carpenter,  15  Wend. 
115.  See  Lewis  v.  Campbell,  8  Taunt.  400. 
715  ;  3  B.  &  Aid.  392.    If  a  lease  con-        (s)  Burdett  v.  Withers,  2  N.  &  P. 


508 


THE   LAW   OF   CONTRACTS. 


[part  II. 


123;  Stanley  v.  Towgood,  3  Bing.  N. 
C.  41.  See  Harris  v.  Jones,  1  M.  &  11. 
173;  Guttcridgc  r.  Munnyard,  7  C.  &  P. 
129.  In  Thompson  v.  Shattuck,  2  Mctc. 
615,  the  defendant  had  covenanted  to 
keep  one  half  of  a  mill-dam  in  repair, 
bat  the  plaintiff's  assignor  was  bound 
to  repair  tlie  other  half.  The  defendant 
failed  to  make  seasonable  repairs,  the 
plaintiff  repaired  the  whole,  and  claimed 
as  damages  one  half  the  expense  of  re- 
pairs and  tlic  loss  of  profits  in  the  mill 
on  account  of  delay.  He  recovered  the 
former,  but  not  the  latter.  Dewey,  J., 
in  delivering  the  opinion  of  the  court, 
thus  stated  the  grounds  of  the  decision. 
"It  being  the  duty  of  Plumb  [the plain- 
tiff's assignor]  to  make  one  half  of  the 


repairs,  and  it  being  a  right  which  he 
might  at  once  exercise,  to  proceed  to 
make  the  whole  repairs,  after  neglect 
and  refusal  of  the  defendant,  upon  rea- 
sonable notice  to  aid  in  the  repairs  ;  if 
said  Plumb  delayed  to  exercise  that 
right  and  thereby  sustained  a  loss,  it  is 
one  which  he  alone  must  bear.  "  See 
Green  v.  Mann,  II  Illinois,  G13.  In 
Green  v.  Eales,  2  Q.  B.  225,  it  was  held 
tliat  a  lessor  who  has  covenanted  to 
repair  the  demised  premises,  is  not 
liable  to  the  lessee  for  the  rents  he  was 
obliged  to  pay  for  another  residence,  or 
for  expense  in  fitting  it  up,  while  the  re- 
pairs were  going  on,  although  the  les- 
see was  obliged  to  move  out  for  repairs 
in  consequence  of  the  lessors  neglect. 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES.  509 

CHAPTER  VIII. 

THE  CONSTITUTION  OF  THE  UNITED  STATES. 

Sect.  1.  —  What  are  Contracts,  within  the  clause  respecting" 
the  obligation  of  them  ? 

In  the  tenth  section  of  the  first  article  of  the  Constitution 
of  the  United  States,  it  is  provided  that  "  no  State  shall  .  . 
pass  any  .  .  law  impairing  the  obligation  of  contracts."  (t) 
Under  this  clause  two  questions  of  great  importance  have 
been  agitated.  One  is,  what  is  a  contract  within  the  mean- 
ing of  this  section  ?  (u)  The  second  is,  what  operation 
upon  or  interference  with  a  contract,  is  to  be  considered  as 
impairing  the  obligation  thereof?  Neither  question  has  re- 
ceived a  positive  and  universal  answer,  settling  by  definition 
all  the  subordinate  questions  which  may  arise  under  it.  But 
we  have  authoritative  and  constructive  adjudication  upon 
both. 

It  seems  to  be  settled  conclusively,  that  a  grant  is  a  con- 
tract ;  executed,  it  is  true,  but  still  a  contract ;  and  that  it 
comes  within  the  scope  of  this  provision ;  {v)  and  therefore 

(t)  This  clause  does  not  apply  to  laws  pact  between  two  or  more  parties,  and 

enacted  by  the  States  before  the  first  is  either  executory  or  executed.     An 

Wednesday  of  March,    1789 — the   day  executory  contract   is   one   in   which  a 

when  the   constitution   of    the    United  party  binds  himself  to  do,  or  not  to  do, 

States  went  into  operation.     0 wings  y.  a  particular   thing;  such   was    the   law 

Speed,  5  Wheat.  420.     Nor  doe.s  it  affect  under  whicli  the  conveyance  was  made 

the    powers    of    Congress.     Evans    v.  by  the  governor.     A  contract  executed 

Eaton,  1  Peters,  S.  C.  322.  is  one  in  which   the  object  of  the  con- 

(w)  "  The  provision  of  the  constitu-  tract  is  performed ;  and  this,  says  Black- 

tion  never  has  been  understood  to  em-  stone,  differs  in  nothing  from    a  grant, 

brace  other  contracts  than  those  which  The  contract  between  Georgia  and  the 

respect  propei-ty,  or  some  object  of  value,  purchasers  wa£  executed  by  the  grant. 

and  confer  rights  wliich  may  be  asserted  A  contract  executed,    as   well   as   one 

in  a  court  of  justice."    Dartmouth  Col-  which    is    executory,   contains    obliga- 

lege  V.  Woodward,  4  Wheat.  518  ;  per  tions  binding  on  the  parties.     A  grant, 

Marshal,  C.  J.,  629.  in    its    own    nature,    amounts    to   an 

[v]    Therefore   the  grant    of   lands  extinguishment    of  the    right    of   the 

by  the  legislature  of   a  State,  consti-  grantor,  and  implies  a  contract  not  to 

tutionally  empowered  to  make  it,  can-  reassert  that  right.     A  party  is,  there- 

not  be  revoked  by  its  successor.     See  fore,  always  estopped  by  his  own  grant. 

Fletcher  v.  Peck,   6    Cranch,    87,  136.  Since,  then,  in  fact,  a  grant  is  a  con- 

Marshall,  C.  J. :   "  A  contract  is  a  com-  tract  executed,  the  obligation  of  which 

43* 


510 


THE   LAW  OF   CONTRACTS. 


[part  II. 


if  there  be  a  grant,  in  itself  valid,  any  law  which  is,  or  permits, 
a  direct  interference  with  the  enjoyment  of  the  things  granted, 
or  a  diminution  of  their  value,  or  any  deprivation  of  the 
things  granted,  or  of  the  rights  or  interests  belonging  to  them, 
by  the  grantor,  impairs  the  obligation  of  the  contract,  (w) 

This  must  be  true,  in  general ;  but  it  must  also  be  subject 
to  some  important  qualifications.  For  the  exercise  of  the 
ordinary  powers  of  government,  which  it  could  not  have 
been  intended  to  take  away  or  control  by  this  provision, 
may  often  have  the  effect  of  diminishing  the  value  of  things 
previously  granted.  Thus,  if  a  State  sold  a  piece  of  land  for 
two  dollars  an  acre,  and  soon  after  sold  similar  and  adjoining 
land,  difiering  in  no  respect  from  the  first,  for  one  dollar  an 
acre,  and  announced  this  as  its  price,  the  market  value  of 
the  lands  first  sold  would  fall,  perhaps,  one  half ;  yet  no  one 
could  doubt  that  the  State  had  a  right  to  make  this  second 
sale.     But  it  is  easy  to  proceed  from  this  question,  to  which 


still  continues;  and  since  the  constitu- 
tion uses  the  general  term  contract, 
without  distinguishing  between  those 
which  arc  executory  and  those  which 
are  executed,  it  must  be  construed  to 
comprehend  the  latter  as  well  as  the 
former.  A  law  annulling  conveyances 
between  individuals,  and  declaring  that 
the  grantors  should  stand  seised  of  their 
former  estates,  notwithstanding  those 
grants,  would  be  as  repugnant  to  the 
constitution  as  a  law  discharging  the 
vendors  of  property  from  the  obligation 
of  executing  their  contracts  by  convey- 
ances. It  would  be  strange  if  a  con- 
tract to  convey  was  secured  by  the  con- 
stitution, while  an  absolute  conveyance 
remained  unprotected.  If,  under  a  fair 
construction  of  tlic  constitution,  grants 
are  comprehended  under  the  term  con- 
tracts, is  a  grant  from  the  State  excluded 
from  the  operation  of  this  provision  1 
Is  the  clause  to  be  considered  as  inhib- 
iting the  .State  from  impairing  the  obli- 
gation of  contracts  between  two  indi- 
viduals, but  as  excluding  from  that  in- 
hil)ition  contracts  made  with  itself? 
The  words  themselves  contain  no  such 
distinction.  Tiicy  arc  general,  and  arc 
applicable  to  contracts  of  every  descrip- 
tion. If  contracts  made  with  the  State 
arc  to  be  excmiUcd  from  their  opera- 
tion, the  exception  must  arise  from  the 


character  of  the  contracting  party,  not 
from  the  w'ords  which  are  employed. 
Whatever  respect  might  have  been  felt 
for  the  State  sovereignties,  it  is  not  to  be 
disguised  that  the  framers  of  the  con- 
stitution viewed,  with  some  apprehen- 
sion, the  violent  acts  which  might  grow 
out  of  the  feelings  of  the  moment ;  and 
that  the  pcojile  of  the  United  States,  in 
adopting  that  instrument,  have  manifest- 
ed a  determination  to  shield  themselves 
and  their  property  from  the  effects  of 
those  sudden  and  strong  passions  to 
which  men  arc  exposed.  The  restric- 
tions on  the  legislative  power  of  the 
States  are  obviously  founded  in  this 
sentiment ;  and  the  constitution  of  the 
United  States  contains  what  may  be 
deemed  a  bill  of  rights  for  the  people  of 
each  State.'"  Dartmouth  College  v. 
Woodward,  4  Wheat,  6,')G,  ])cr  Wash- 
imjton,J. ;  Rchoboth  v.  Hunt,  1  Pick.  224; 
Lowry  v.  Francis,  2  Ycrg.  534  ;  Butler 
V.  Chariton  County  Court,  13  Miss.  112. 
So  where  the  grant  is  to  a  corporation 
the  State  cannot  revoke  it;  Tenet  v. 
Tavlor,  9  Cranch,  43  ;  Wilkinson  v.  Le- 
land,  2  Peters,  657.  See  Den  d.  Uni- 
versity of  North  Carolina  v.  Foy,  1 
Murph.  58. 

(»•)  Winter  v.  Jones,  10  Geo.  190; 
Planter's  Bank  v.  Sharji,  6  How.  301, 
327. 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES.  511 

the  answer  is  obvious,  to  others  in  which  it  is  more  difficult. 
And  all  we  can  say,  on  authority,  upon  the  general  question, 
what  limits  this  necessity  of  leaving  unimpaired  all  the 
functions  of  government,  and  the  control  by  the  public  of  all 
public  interests,  imposes  upon  the  operation  of  the  clause 
under  consideration,  would  seem  to  be  this:  We  may  say, 
that  it  is  not  intended  to  .apply  to  public  property,  to  the 
discharge  of  public  duties,  to  the  possession  or  exercise  of 
public  rights,  nor  to  any  changes  or  qualifications  in  any  of 
these,  which  the  legislature  of  a  State  may  at  any  time 
deem  expedient,  (x)  This  rule  seems  to  spring  from  an 
obvious  necessity  ;  but  it  rests  also  upon  an  obvious  and 
sufficient  reason.  This  is,  that  in  relation  to  public  property, 
there  is  no  grant ;  no  contract  whatever,  executed  or  execu- 
tory. By  such  an  act,  the  public,  by  the  legislature,  which  is 
its  agent,  gives  something  of  its  own,  to  somebody  else  who  is 
also  its  agent.  Nothing  then,  in  fact,  is  given  ;  for  nothing 
goes  forth  from  the  public.  The  whole  transaction  amounts 
to  no  more  than  a  change  made  by  the  public,  in  the 
manner  in  which,  or  the  agents  by  whom,  it  shall  continue  to 
hold  and  use  a  certain  portion  of  its  property  or  interests. 
The  very  essence  of  a  contract  —  tivo  parties,  with  mutual  ob- 
ligations —  is  wanting ;  and  it  is  therefore  no  contract  at  all. 
Therefore  all  political  powers  conferred  by  the  legislature  on 
a  municipal  corporation  may  be  revoked.  (//)  But,  on  the 
other  hand,  if  private  property  or  franchises  are  granted  to 
a  municipal  corporation,  this  grant  cannot  be  revoked,  nor  the 
property  or  rights  conferred  by  it  in  any  way  devested  by  the 
State,  (z)  Nevertheless,  the  State  does  not  lose  its  right  of 
making  laws  concerning  the  things  granted,  so  far  as  they 

(x)    Divrtmouth   College   v.    "Wood-  (y)  The  People  v.  Mon-is,  13  Wend. 

\vard,4  Wheat.  518,  C29.   Marshal,  C.  J.:  325  ;  Marietta  w.  Fearing-,  4  Ohio,  427  ; 

"That  the  framers  of  the    constitution  Tenettr.  Taylor,  9  Crancii,  43  ;  Bradford 

did  not  intend  to  restrain  the  States  in  v.  Gary,  5  Greenl.   339,   342;  Bush  v. 

the  regulation  of  their  civil  institutions,  Sliipman,   4    Scara.    186;    Trustees  of 

adopted  for  internal   government,  and  Schools  v.  Tatman,  13  111.  27  ;  Mills  v. 

that  the  instrument  they  have  given  us  Williams,  11  Iredell,  558. 

is  not  to  be  so   construed,    may   be  ad-  {z)Tcnett  v.  Tiwlor,  supra  ;  Town  of 

mitted."     Philips  v.  Bury.  2  T.  II.  352  ;  Pawlet  v.  Clark,  9  'Cranch,  292 ;   Dart- 

Knoop   V.  The    Piqua  Bank,  1    Ohio  mouth  College  v.  Woodward,  4  Wheat. 

State  R.  603,  609;  Toledo  Bank  v.  Bond,  518 ;  Bailey  v.  The  Mayor  of  New  York, 

1  Ohio  State  R.  657,  per  Bartley,  C.  J.  3  Hill,  531. 


512 


THE   LAW   OF   CONTRACTS. 


[part  II. 


remain  publici  juris,  or  so  far  as  it  sees  fit  to  provide  for  the 
due  exercise  of  the  rights  granted,  or  the  proper  use  of  the 
property  granted,  for  the  public  benefit  and  safety,  (a)  So 
the  salary  and  tenure  of  an  office  prescribed  by  law,  do  not 
constitute  a  contract  which  is  protected  by  this  clause  in  the 
constitution  ;  and  they  may  therefore  be  modified  or  reduced, 
unless  this  is  prohibited  by  the  oonstitution  of  the  State.(Z>) 


(a)  In  Benson  v.  The  Mayor,  &c.  of 
New  York,  10  Barb.  223,  it  was  held  that 
ferry  franchises  may  be  held  by  a  mu- 
nicipal corporation,  without  losing  their 
character  as  private  property,  and  when 
accepted  and  acted  upon  they  cannot  be 
resumed  by  the  State  :  but  that  the  State 
is  not  excluded  from  legislation  touch- 
ing tliem,  so  far  as  they  are  publici  juris, 
and  may  pass  laws  to  secure  the  safety 
of  passengers  and  protect  them  from 
imposition,  &c.  In  East  Hartford  v. 
Hartford  Bridge  Co.  10  How.  511;  S.  C. 
17  Conn.  79,  the  reasoning  of  Wood- 
l>u)y,  J.,  delivering  the  opinion  of  the 
court,  indicates  the  opinion  that  ferry 
franchises,  when  granted  to  municipal 
corporations,  are  public  privileges,  in  the 
nature  rather  of  public  laws,  than  of 
contracts  to  be  modified  or  aljolished  by 
the  legislature,  as  the  public  interests 
demand ;  but  the  circumstances  of  the 
case  did  not  call  for  the  opinion,  as  in 
that  case  the  ferry  right  was  in  express 
terms  to  be  held  during  the  pleasure  of 
the  General  Assembly. 

(6)  Warner  v.  The  People,  2  Denio, 
272:  Conner  v.  The  City  of  New  York, 
2  Sandf.  355;  S.  C.  1  Seldcn,  285; 
Knoop  r.  The  PiquaBank,  1  Ohio  State 
R.  61 G,  per  Corwin,  J.;  Toledo  Bank  v. 
Bond,  Id.  65G:  Commonwealth  v.  Bacon, 
6  S.  &  R.  322 ;  Commonwealth  v.  Mann, 
5  W.  &  S.  418;  Barker  v.  Pittsburgh, 
4  Barr,  51 ;  The  West  River  Bridge 
Co.  V.  Dix,  6  IIow.  548;  Butler  v. 
Pennsylvania,  10  Id.  402.  In  1836,  the 
State  of  Pennsylvania  passed  a  law 
directing  canal  commissioners  to  be 
appointed  annually  by  the  governor, 
and  that  their  term  of  office  should  com- 
mence on  the  first  of  February  in  every 
year.  The  pay  was  fixed  by  the  law 
at  four  dollars  per-  diem.  In  April,  1843, 
certain  persons  being  then  in  office  as 
commissioners,  the  legislature  passed 
another  law,  providing,  amongst  other 
things  that  the  per  dian  should  be  only 
three    dollars :    the   reduction   to   take 


effect  upon  the  passage  of  the  law  ;  and 
that  in  the  following  October,  commis- 
sioners should  be  elected  by  the  people. 
The  commissioners  claimed  the  full  al- 
lowance, during  the  entire  year,  upon  the 
ground  that  the  State  had  no  right  to 
pass  a  law  impairing  the  obligation  of  a 
contract.  It  was  held  that  there  was 
no  contract  between  the  State  and  the 
commissioners,  within  the  meaning  of 
the  constitution  of  the  United  States. 
Daniels,  J.  :  "  The  contracts  designed  to 
be  protected  by  the  10th  section  of  the 
first  article  of  that  instrument,  are  con- 
tracts by  which  perfect  rights,  certain  defi- 
nite, fixed,  private  rights  of  property,  are 
vested.  These  are  clearly  distinguish- 
able from  measures  or  engagements 
adopted  or  undertaken  by  the  body 
politic  or  State  government,  for  the  ben- 
efit of  all,  and  from  the  necessity  of  the 
case,  and  according  to  universal  under- 
standing, to  be  varied  or  discontinued 
as  the  public  good  shall  require.  The 
selection  of  officers,  who  are  nothing 
more  than  agents  for  the  effectuating  of 
such  public  purposes,  is  matter  of  pub- 
lie  convenience  or  necessity,  and  so  too 
are  the  periods  for  the  appointment  of 
such  agents ;  but  neither  the  one  nor 
the'other  of  these  arrangements  can  con- 
stitute any  obligation  to  continue  such 
agents,  or  to  reappoint  them,  after  the 
measures  which  brought  them  into  being 
shall  have  been  found  useless,  sliall 
have  been  fulfilled,  or  shall  have  been 
abrogated  as  even  detrimental  to  the 
well-being  of  the  public.  The  promised 
compensation  for  services  actually  per- 
formed and  accepted,  during  the  con- 
tinuance of  the  particular  agency,  may 
undoubtedly  be  claimed,  both  upon  i)rin- 
ciples  of  compact  and  of  equity;  but  to 
insist  beyond  this  on  the  perpetuation  of 
a  public  policy  either  useless  or  detri- 
mental, and  upon  a  rcwanl  for  acts 
neither  desired  nor  performed,  would 
appear  to  be  reconcilable  with  neither 
common   justice    nor    common   sense. 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES.  513 

The  reason  for  the  difference,  as  to  the  operation  of  this  sec- 
tion, upon  public  and  upon  private  property,  will  also  help  us 
to  answer  the  next  question  :  What  is  private  property,  in  this 
sense  and  for  this  purpose  ?  The  answer  is,  any  thing  and 
every  thing  which  has  gone  out  of  the  public,  by  its  grant  or 
its  sanction.  To  determine  any  particular  case,  therefore,  we 
should  take  the  instrument  referring  to  the  property,  whether 
it  be  a  statute  or  any  thing  else,  and  ask  whether,  if  read 
rationally  and  honestly,  it  leaves  the  usufruct  of  the  property 
and  interests  substantially  in  the  possession,  or  the  manage- 
ment thereof  within  the  control  of  the  public,  by  such  agents 
as  it  may  appoint,  or  not.  If  it  does,  then  it  is  public  pro- 
perty, and  this  clause  does  not  attach ;  if  it  does  not,  then 
it  is  private  property,  and  this  clause  does  attach. 

Thus,  it  has  been  very  solemnly  and  we  hope  authorita- 
tively decided,  that  a  corporation  is  a  person  who  may  take 
a  grant  as  well  as  any  individual ;  that  a  corporation,  erected 
by  the  legislature  or  adopted  by  the  legislature,  and  endowed 
with  certain  powers,  and  functions,  and  property,  the  legisla- 
ture reserving  no  interest  in  what  is  given  them,  and  no  con- 
trol over  the  succession  of  persons  who  form  the  corporation, 
or  over  the  exercise  of  their  functions, —  such  a  corporation 
is  a  private  corporation,  to  whom  a  franchise  has  been  given, 
by  a  grant,  which  is  an  executed  contract,  and  that  any  de- 
privation of  their  property,  or  any  disturbance  or  denial  of 
their  rights  and  functions,  impairs  the  obligation  of  the  con- 
tract.    And  if  the  legislature  have  reserved  to  themselves 

The  establishment  of  such  a  principle  competent  government,  there  must  exist 

would    arrest    necessarily  every   thing  a  general  power  to  enact  and  to  repeal 

like  progress  or  improvement  in  govern-  laws;   and   to    create,  and  change   or 

ment ;  or  if  such  changes  should  be  ven-  discontinue,  the    agents  designated  for 

tured  upon,  the  government  would  have  the  execution  of  tliose  laws.     Such  a 

to  become  one  gi-cat  pension  establish-  power  is  indispensable  for   the   preser- 

ment  on  which  to  quarter  a  host  of  sin-  vation  of  the  body  politic,  and   for  the 

ecures.     It  would  especially  be  difficult,  safety  of  the  individuals   of  the   com- 

if  not  impracticable,  in  this  view,  ever  munity. "     See  Allen   v.    McKean,    1 

to  remodel  the  organic  law  of  a  State,  Sumn.  277.     See  also,  in  Whillingtonr. 

as  constitutional  ordinances  must  be  of  Polk,  1  Har.  &  J.  236 ;  a  strange  case 

higher   authority  and   more  immutable  in  which  Luther  Martin  brought  an  ac- 

than  common    legislative   enactments,  tion  on  an  assize  sur  novel  disseisin,  to 

and  there   could   not  exist    conflicting  maintain  the  right  of  a  judge  to  his  seat, 

constitutional  ordinances  under  one  and  after  the  court  had  been  destroyed  by  a 

the   same    system.      It    follows,    then,  statute  repealing  that  under  wliich  the 

upon  principle,  that  in  every  perfect  or  judge  was  appointed. 


514 


THE   LAW   OF   CONTRACTS. 


PART   II. 


riglits  in  the  creation  of  such  corporation,  or  in  any  grant  to 
them,  these  reservations  are  to  be  strictly  followed ;  what- 
ever lies  without  them,  being  as  if  there  were  no  reserva- 
tions whatever,  [c) 

That  the  charters  of  private  civil  corporations, —  of  which 
banks,  or  insurance,  turnpike,  and  railroad  companies  are 
leading  instances,  —  are  contracts,  protected  by  this  clause 
in  the  constitution  of  the  United  States,  seems  to  be  well 
settled,  (d)     But  any  charter  may  contain  within  it  an  ex- 


(c)  Dartmouth  College  v.  Woodward, 
4  Wheat.  518.  The  law  of  this  case  is, 
that  an  eleemosynary  corporation,  found- 
ed by  private  contril)utions  for  the  dis- 
tribution of  a  general  charity,  is  not  an 
instrument  of  government  whose  officers 
are  public  officers,  but  a  private  corpora- 
tion whose  charter  is  a  contract  between 
tlie  donors,  the  trustees,  and  the  govern- 
ment, founded  on  the  consideration  of 
public  benefit  to  be  derived  from  the 
corporation,  Avhich  cannot  be  altered, 
amended,  or  modified  by  the  State,  with- 
out the  consent  of  the  corporation.  It 
also  decides  that  the  charters,  granted 
by  the  crown  before  the  Kevolution,  are 
within  this  principle,  except  so  far  as  they 
were  aflfected  by  the  legislation  of  par- 
liament or  of  the  colonies,  before  the 
adoption  of  the  U.  S.  Constitution;  and 
tlie  doctrine  that  civil  riglits  were  not 
destroyed  by  the  Revolution  is  well  es- 
tablished. Dawson  v.  Godfrey,!  Cranch. 
323  ;  Tcnett  v.  Taylor,  9  Id.  43  ;  Society, 
&c.  I'.  New  Haven,  8  Wheat.  464  ;  The 
case  of  Dartmouth  College  v.  Woodward 
has  been  often  affirmed,  both  in  the  State 
and  Federal  Courts,  and  cited  as  an  un- 
questionable autliority.  Society,  &c.  v. 
New  Haven,  8  W^iieat,  464  ;  Trustees  of 
Vincennes  University  ;•.  Indiana,  14 
How.  268 ;  Norris  i".  The  Trustees  of 
Abingdon  Academy,  7  G.  &  J.  7  ;  Gram- 
mar School  c.  Burt,  11  Vt.  632;  Brown 
V.  llunimcll,  6  Barr,  86;  The  State  v. 
Heywood,  3  Bicli.  389.  It  is  insisted, 
in  Toledo  Bank  v.  Bond,  1  Ohio  State  R. 
670-679,  that  the  case  of  Dartmouth 
College  i".  Woodward  did  not  decide  the 
fnincldse  or  clairler  of  a  corporation  to  be 
a  runtnict,  but  only  that  the  ciratmstanccs 
of  the  case  constituted  a  contract  between 
tlie  donors  anil  the  corporators,  for  the 
conveyance  and  perpetual  apiilication  of 
private  property,  for  the  jmrposes  of  the 
trust  under  the    charter,  and  that    this 


contract  was  impaired  by  the  State  laws, 
which  did  not  merely  interfere  with  the 
charter,  but  also  transfered  the  private 
property  held  by  the  trustees  to  another 
corporation,  in  violation  of  the  terms  of 
the  contract  by  which  the  trust  had  been 
created  and  the  property  invested. 

{(J)  Thus  if  a  bank  has  by  its  charter 
an  express  or  implied  power  to  sell  and 
transfer  negotiable  paper,  a  law  taking 
away  this  power  impairs  the  obligation 
of  a  contract,  and  is  void.  Planters  Bank 
V.  Sharp,  6  How.  301 ;  The  People  v. 
Manhattan  Co.  9  Wend.  351.  See  also- 
Providence  Bank  v.  Billings,  4  Peters, 
560;  Turnpike  Co.  v.  Phillips,  2  Penn. 
184  ;  Claghorn  v.  Culicn,  13  Penn.  St. 
133  ;  Com.  Bank  of  Natchez  v.  The 
State  of  Mississippi,  6  S.  &  M.  599; 
Backus  V.  Lebanon,  11  N.  H.  19  ;  Mich- 
igan State  Bank  v.  Hastings,  1  Doug. 
225;  Miners  Bank  v.  United  States,  1 
Greene,  553 ;  Bank  of  the  State  v.  Bank 
of  Cape  Fear,  13  Iredell,  75.  It  has 
recently  been  held  in  Ohio,  that  a  charter 
is  a  legislative  enactment,  subject  to 
amendment  or  repeal,  possessing  the 
form  and  essential  elements  of  a  law,  and 
not  those  of  a  contract,  and  that  an  in- 
corporated banking  institution  is  a  pub- 
lic corporation  aj)pointed  for  public  pur- 
poses, subject  to  the  control  of  the  i)ub- 
lic,  the  charter  of  which  is  held  at  the 
pleasure  of  the  sovereign  power.  Me- 
chanics &  Traders  Bank  V.  Debolt,  1  Ohio 
State  R.  591 ;  Toledo  Bank  v.  Bond,  Id. 
622 ;  Knoop  v.  The  Piqua  Bank,  Id. 
603,  609.  Per  Convin,  J. :  "I  maintain 
that  a  banking  institution  is  a  puUic  in- 
stitution, appointed  for  public  pur])oscs  ; 
never  legitimately  created  for  private 
purposes,  its  creation  proceeding  solely 
upon  the  idea  of  public  necessity  or 
public  convenience,  and  that,  being  ap- 
pointed by  the  public,  solely  for  public 
uses,  all  its  oj)erations  arc  subject  to  the 


en.  VIII.]     THE  CONSTITUTION  OF  TUE  UNITED  STATES. 


515 


press  reservation  to  all  future  legislatures,  of  repeal  or  modi- 
fication ;  and  this  right  may  be  secured  by  a  general  statute 
relating  to  a  certain  class  of  corporations,  (e) 


SECTION  II. 


WHAT  EIGHTS   ARE   IMPLIED   BY   A   GRANT. 

It  is  an  important  question,  what  are  the  rights  or  interests 
which  are,  bjj  implication^  a  part  of  an  expressed  grant,  so  that 
interference  w*ith  them  is  prohibited  by  this  clause.  One 
answer  would  be,  that  every  grant  must  be  construed  wuth 
absolute  strictness  ;  and  nothing  whatever  be  added,  by  im- 
plication or  construction,  to  that  which  is  expressly  given. 
Another,  that  every  thing  which  is  requisite  for  the  full  en- 
joyment and  most  beneficial  use  of  the  thing  granted,  must 
be  supposed  to  be  given  with  the  grant,  or  be  contained  in  it ; 
for  it  shall  be  construed  strictly  against  the  grantor,  and  the 
grantee  has  a  right  to  the  enjoyment,  in  fact,  of  the  whole 
benefit  of  all  that  was  given.  But  the  true  rule  would  per- 
mit some  extension  of   the  grant  by  implication,  or  rather 


control  of  that  public,  who  may,  from 
time  to  time,  as  the  public  good  may  re- 
quire, enlarge,  restrain,  limit,  modify  its 
powers  and  duties,  and,  at  pleasure, 
dispense  with  its  benefits.  The  agency, 
during  its  continuance,  is  equally  in- 
dependent, within  its  sphere,  and  upon 
a  modification  of  its  terms  unsuited  to 
its  pleasure,  the  agency  itself  may  be 
renounced  and  surrendered.  So  the 
rights  of  the  agent  to  the  profits  and 
emoluments  of  the  agency,  as  they  may, 
from  time  to  time,  be  prescribed,  will  be 
sacredly  regarded  and  enforced  by  the 
courts  of  justice ;  but  like  every  other 
agency,  it  is  revocable  at  the  will  of  the 
principal."  A  doctrine  not  wholly  un- 
like this,  is  implied,  or  indeed  asserted, 
in  Butler  v.  Palmer,  1  Hill's  N.  York  R. 
324.  There,  an  act  passed  May  12, 1837, 
gave  the  assignee  of  a  mortgagor  one 
year  to  redeem  after  a  sale.  An  act 
passed  April  18,  1838,  repealed  the 
former  act,  the  repeal  to  take  eft'ect 
after  Nov.  1,  1838.  An  assignee  of  a 
mortgagor,  on  Nov.  3,  but  within  one 
year  from   the  sale  to  him,  offered  to 


redeem.     But  it  was  held  that  he  was 
barred  by  the  repeal  of  the  first  act. 

(e)  No  reservations  but  those  ex- 
pressed in  the  charter  can  be  introduced 
by  the  legislature,  without  the  consent 
of  the  corporation.  Washington  Bridge 
Co.  V.  The  State,  18  Conn.  .')3.  In 
Massachusetts  there  are  statutes  as  to 
banking  corporations,  others  as  to  manu- 
facturing corporations,  and  others  as  to 
other  corporations,  which  would  certain- 
ly operate  upon  any  particular  charter, 
as  if  a  part  of  it.  In  Stanley  v.  Stanley, 
26  Maine,  191,  it  was  held  that  a  statute 
making  the  stockholders  liable  for  the 
debts  of  the  corporation,  was  valid  in 
respect  to  debts  subsequently  contracted, 
and  was  binding  on  one  who  became  a 
member  of  the  corporation  after  the 
passage  of  the  act.  In  Williams  v. 
Planters  Bank,  12  Robinson,  Louis.  R. 
125,  and  Payne  v.  Baldwin,  3  Sm.  &  M. 
661,  it  is  held  that  banks  maybe  requir- 
ed to  receive  their  own  bank-notes  in 
payment  of  debts  due  to  them,  although 
under  par  iu  the  market. 


516  THE   LAW   OF   CONTRACTS.  [PART   II, 

would  construe  it  to  include  beside  all  that  is  expressly  given, 
whatever  else  is  strictly  necessary  to  any  beneficial  use  of  the 
thing  given,  and  would  stop  there.  It  would  not  be  satisfied 
with  a  merely  literal  fulfilment  of  the  contract,  if  this  was  in 
fact  no  actual  discharge  of  it  whatever,  but  a  mere  evasion 
of  its  provisions.  But  if  the  literal  construction  gave  some 
beneficial  use  of  the  property  or  franchise,  the  grantor  would 
not  be  held  to  have  bound  himself  by  implication,  from  such 
farther  action  as  might  prevent  this  use  from  being  beneficial 
to  the  extent  which  might  otherwise  have  been  attained,  and 
was  originally  expected.  (/) 

It  is  this  view  which  the  courts  seem  to  have  adopted. 
And  the  difficulties,  or  even  errors,  in  fact,  which  may  attend 
the  application  of  such  a  rule  to  the  circumstances  of  various 
cases,  are  not  sufficient  to  justify  a  denial  of  the  principle 
itself,  which  seems  to  be  rational  and  just.  For  if  the  grantee 
wished  to  secure  to  himself  all  possible,  or  even  probable  and 
natural  advantages,  it  was  his  business  to  ask  for  them. 
And  if  he  did  not,  it  was  his  neglect,  or  else  he  forebore  to 
ask  lest  he  should  be  denied,  preferring  to  rest  upon  con- 
struction ;  and  this  conduct  would  certainly  be  entitled  to  no 
favor.  And  it  is  therefore  not  too  much  to  say,  that  a  legis- 
lative grant  shall  not  be  held  to  intend  exclusive  privileges, 
as  appurtenant  to  a  franchise  expressly  given,  [g) 

(/)  United  States  v.  Arendenilo,  6  ever  any  power  of  the  State  is  said  to  be 
Peters,  73G ;  Beatty  v.  Knowles,  4  Id.  surrendered  or  diminished,  whether  it 
152 ;  rrovidence  Bank  v.  Billin^^s,  9  Id.  be  the  taxing  power  or  any  other  affect- 
h\A\  Jackson  r.  Lainphire,  3  Id.  289;  ingtiic  public  interest,  the  same  ])rinciplc 
Charles  Kiver  Bridge  v.  AVarrcn  Bridge,  applies,  and  the  rule  of  construction  must 
11  Peters,  548.  Taney,  C.  J.:  "The  con-  be  the  same."  The  Iviehmond  11.  R.  Co. 
tinued  existence  of  a  government  would  u.  Tlie  Louisa.  R.  R.  Co.  13  How.  81. 
be  of  no  great  value  if  by  implications  Per  Grier,  J.:  "It  is  a  settled  rule  of 
and  presumiJlions,  it  was  disarmed  of  construction  adopted  by  this  court  that 
the  ])0wers  necessary  to  accomi)lisli  the  public  grants  are  to  be  construed  strictly, 
ends  of  its  creation;  and  tlie  functions  Tliis  act  contains  the  grant  of  certain 
it  was  designed  to  perform,  transferred  privileges  by  tiic  public  to  a  private  cor- 
to  the  hands  of  privileged  corjjorations.  poration,  and  in  a  matter  where  the 
The  rule  of  construction  announced  by  public  interest  is  concerned ;  and  the 
the  court  (referring  to  Providence  Bank  rule  of  construction  in  all  sucli  cases  is 
V.  Billings)  was  not  confined  to  tlie  now  fully  established  to  be  this  —  that 
taxing  power;  nor  is  it  so  limited  in  the  any  ambiguity  in  the  terms  of  the  con- 
opinion  delivered.  On  the  contrary,  it  tract  must  operate  against  the  corpor- 
was  distinctly  ])laccd  on  the  ground  "tliat  ation  and  in  favor  of  the  public  ;  and  the 
the  interests  of  tlie  community  were  corporation  can  claim  notliing  but  what 
concerned  in  jirescrving,  undiminished,  is  clearly  given  by  tlie  act." 
the  iiower  then  in  (jucstion ;  and  when-        (y)  Charles  River  Bridge  v.  WaiTCn 


en.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES. 


517 


SECTION  III. 


OF   AN   EXPRESS   GRANT   OF   EXCLUSIVE   PRIVILEGES. 


We  thus  reach  another  question.  If  these  exclusive  priv- 
ileges are  expressly  given,  how  does  this  clause  of  the  consti- 
tution operate  on  them  ?    If  it  makes  them  irrevocable,  and 


Bridge,  1 1  Peters,  420  ;  S.  C.  6  Pick. 
377  ;  7  Pick.  345.  In  this,  the  leading 
case  on  this  topic  of  constitutional  law, 
the  legislature  of  Massachusetts,  in  178.5, 
granted  a  charter  to  a  company  for  the 
building  of  a  bridge  over  Charles  River, 
from  Boston  to  Charlestown,  under  the 
name  of  the  Charles  River  Bridge,  and 
taking  tolls  of  persons  passing  over  it, 
for  the  term  of  forty  years,  extended  by 
a  subsequent  act  to  seventy  years.  In 
1828,  before  the  expiration  of  the  charter, 
an  act  was  passed  authorizing  the  erection 
of  the  AVurren  Bridge  a  few  rods  from 
the  former,  which  was  to  become  free  in 
six  years.  The  tolls  of  the  Charles  River 
Bridge  were  thereby  reduced  to  a  very 
small  amount.  It  was  held  that  the 
grant  of  franchises  by  the  public,  in  mat- 
ters where  the  public  interests  are  con- 
cerned, as  exemption  from  taxation  and 
the  riglit  of  the  State  to  open  new  roads 
and  construct  new  bridges,  are  to  be 
construed  strictly ;  that  nothing  passes 
by  implication,  and  no  rights  are  taken 
from  the  public  or  given  to  the  corpor- 
ation beyond  those  which  the  words  of 
the  charter,  by  their  natural  and  proper 
construction,  convey ;  and  that  as  the 
charter,  in  its  terms,  granted  no  exclusive 
rights  ab(jvc  and  below  the  bridge,  and 
contained  no  stipulation,  on  the  part  of 
the  State,  not  to  authorize  another  bridge 
above  or  below  it,  no  such  exclusive 
right  of  the  plaintift"  company  could  be 
implied.  Taney,  C  J. :  "It  may, perhaps, 
be  said,  that  in  the  case  of  the  Pro- 
vidence Bank,  this  court  were  speaking 
of  the  taxing  power,  which  is  of  vital 
importance  to  the  very  existence  of 
every  government.  But  the  object  and 
end  of  all  government  is  to  promote  the 
happiness  and  prosperity  of  the  com- 
munity by  which  it  is  established ;  and 
it  can  never  be  assumed  that  the  govern- 
ment intended  to  diminish  its  power  of 
accomplishing  the  end  for  which  it  was 
created.     And  in  a  country  like  ours, 


free,  active,  and  enterprising  —  continu- 
ally advancing  in  numbers  and  wealth  — 
new  cliannels  of  communication  are 
daily  found  necessary,  both  for  travel 
and  trade,  and  are  essential  to  the  com- 
fort, convenience,  and  prosperity  of  the 
people.  A  State  ought  never  to  be  pre- 
sumed to  surrender  this  power,  because, 
like  the  taxing  power,  the  whole  com- 
munity have  an  interest  in  preserving 
it  undiminished.  And  when  a  corpora- 
tion alleges  that  a  State  has  surrendered, 
for  seventy  years,  its  power  of  improve- 
ment and  public  accommodation,  in  a 
great  and  important  line  of  travel,  along 
which  a  vast  number  of  its  citizens  must 
daily  pass,  the  community  have  a  right 
to  insist,  in  the  language  of  this  court, 
above  quoted,  'that  its  abandonment 
ought  not  to  be  presumed,  in  a  case  in 
which  the  deliberate  purpose  of  the  State 
to  abandon  it  does  not  appear.'  The 
continued  existence  of  a  government 
would  be  of  no  great  value,  if,  by  impli- 
cations and  presumptions,  it  was  dis- 
armed of  the  powers  necessary  to  ac- 
complish the  ends  of  its  creation ;  and 
the  functions  it  was  designed  to  perform, 
transferred  to  the  hands  of  privileged 
corporations."  pp.  547,  548.  Story,  J., 
in  a  dissenting  opinion  of  great  length, 
maintained  that  the  grant  to  tlie  Charles 
River  Bridge  should  receive  a  liberal 
instead  of  a  strict  construction,  and  that 
there  was  necessarily  implied  in  the 
charter  of  that  company  a  stipulation 
that  the  legislature  would  charter  no 
other  bridge  between  Charlestown  and 
Boston  so  near  as  to  injure  the  former's 
franchise  or  diminish  its  toll,  in  a  positive 
and  essential  degree.  "  To  sum  up.  then," 
said  he,  "  the  whole  argument  on  this 
head,  I  maintain,  that  upon  the  prin- 
ciples of  common  reason  and  legal  inter- 
pretation, the  present  grant  carries  with 
it  a  necessary  implication  tliat  the  legis- 
lature should  do  no  act  to  destroy  or 
essentially  to  impair  the  franchise ;  that 


VOL.    II. 


44 


518 


THE   LAW   OF   CONTRACTS. 


[part  n. 


forever  forbids  any  repeal  or  withdrawal  of  them,  or  any  in- 
terference with  ov  niodification  of  them,  does  it  not  deprive 
the  legislature  of  giving  them,  on  the  ground  that  they  are 
the  agents  of  the  public  only  for  the  present,  and  not  for  the 
future;  and  have  no  authority,  expressly  given,  or  implied 
from  their  function  and  duty  as  a  legislature,  to  deprive  the 
public  of  a  future  exercise  of  the  power  which  the  legislature 
now  abandons  ?  Thus,  to  put  the  question  in  the  simplest 
form  :  If  a  State  sells  a  square  mile  of  land,  expressly  coven- 
antin"-  by  its  authorized  deed,  and  expressly  enacting  by  a 
contirmatory  statute,  that  the  land  shall  forever  be  exempt 


( as  one  of  the  learned  judges  of  the  State 
court  expressed  it,)  there  is  an  im- 
plied agreement  of  tlie  State  to  grant 
the  undisturbed  use  of  the  bridge  and 
its  tolls,  so  far  as  respects  any  acts  of 
its  own,  or  of  any  persons  acting  under 
its  authority.  In  other  words,  the  State, 
impliedly,  "contracts  not  to  resume  its 
grant,  or  to  do  any  act  to  the  prejudice 
or  destruction  of  its  grant.  I  maintain 
tliat  there  is  no  authority  or  principle 
established  in  relation  to  the  construction 
of  crown  grants,  or  legislative  grants, 
which  does  not  concede  and  justify  this 
doctrine.  Wlicrc  the  thing  is  given,  tlie 
incidents  without  which  it  cannot  be  en- 
joyed, are  also  given ;  ut  res  mwjls  vulcal 
guam  percat.  1  maintain  that  a  different 
doctrine  is  utterly  repugnant  to  all  tlio 
principles  of  tiie  common  law,  aj)i)licablc 
to  all  franiliises  of  a  like  nature  ;  and 
that  we  must  overturn  some  of  the  best 
securities  of  the  riglits  of  property,  be- 
fore it  can  be  establisiied.  I  maintain 
that  tlic  common  law  is  the  birtliright 
of  every  citizen  of  Massachusetts,  and 
that  lie  holds  the  title-deeds  of  liis  pro- 
perty, corporeal  and  incorporeal,  under 
it.  i  maintain  that  under  the  principles 
of  tlie  common  law,  there  exists  no  more 
right  in  the  h'lrishiture  of  Massachusetts, 
to  erect  the  Warren  Bridge,  to  the  ruin 
of  the  franchise  of  the  Ciiarles  llivcr 
Bridge,  than  exists  to  transfer  the  latter 
to  tlie  former,  or  to  authorize  the  former 
to  demolish  the  latter,  li  the  legislature 
does  nut  mean  in  its  L'rant  to  give  any 
exclusive  ri;.dits,  let  it  say  so,  exjircssly  ; 
directly;  and  in  terms  admitting  of  no 
misconstruction.  The  grantees  will  tlien 
take  at  their  jierii,  anil  must  abide  tiic 
results  of  tlieir  overweening  confidence, 


indiscretion,  and  zeal."  pp.  647,  648. 
In  the  State  court,  7  Pick.  344,  the 
judges  were  equally  divided  on  the 
question  whether  the  Charles  River 
Bridge  had  any  exclusive  rights  beyond 
its  own  limits.  Hlorton,  J.,  (pp.  461, 464,) 
and  Wilde,  J.,  (pp.  468,  469.)  holding 
against  sucli  a  right,  and  Putnam,  J., 
(p.  477,)  and  Parker,  C.  J.,  (p.  506,)  in 
favor  of  such  exclusive  right  beyond  its 
limits.  The  doctrine  of  the  case  of 
Charles  Kivcr  Bridge  v.  Warren  Bridge 
has  been  repeatedly  confirmed.  The 
West  Kiver  Bridge  v.  Dix,  6  How.  532; 
S.  C.  16  Vt.  446  ;  The  Mohawk  Bridge 
V.  The  Utica  and  Schenectady  li.  11.  Co. 
6  l*aige,  547  ;  The  Oswego  Falls  Bridge 
V.  Fisli,  J  Barb.  Ch.  547  ;  Thompson  v. 
The  New  York  &  Harlem  R.  R.  Co.  3 
Sandf.  Ch.  625;  Tuckahoc  Canal  Co.  v. 
Tuckahoe  R.  R.  Co.  11  Leigh,  42; 
Washington  &  Baltimo;'e  Turnpike  Co. 
V.  Baltimore  &  Ohio  R.  R.  Co.  10  G.  & 
J.  392  ;  Harrison  v.  Young,  9  Geo.  359  ; 
McLeod  r.  Burroughs,  Id.'213;  Shorter 
V.  Smitli,  Id.  517;  Wiiite  River  Turn- 
pike Co.  V.  Vt.  Central  R.  R.  Co.  21 
Vt.  590 ;  Enfield  Toll  IJridge  Co.  v. 
Hartford  &  N.  H.  R.  R.  Co.  17  Conn. 
41,454;  Miners  Bank  v.  United  States,  1 
Greene,  553 ;  Greenl.  Cruise,  tit.  XXVII. 
^  29.  Of  tlic  Charles  River  Bridge 
case  it  is  said  by  Barcnlo,  J.,  that,  "  to 
say  the  least  of  it,  it  stands  upon  the 
extreme  verge  of  the  law,  and  pcrlutps, 
readies  a  little  I)cyond  justice  and  good 
faith."  Benson  v.  Tiie  Mayor,  ^^c.  of 
Kew  York,  10  Barb.  243.  "Where  the 
right  to  build  a  bridge  is  given,  it 
is  exclusive  within  its  own  limits. 
Biseataqua  Bridge  v.  New  Hampshire 
Bridire,  7  N.  II.  35. 


en.  VIII.]      THE  CONSTITUTION  OF  THE  UNITED  STATES.  519 

from  taxation,  is  this  covenant  binding  upon  the  State  ;  that 
is,  upon  future  legislatures  ?  (A) 

An  answer  to  this  question  would  require  some  considera- 
tion of  the  nature  and  extent  of  the  rights  of  supreme  sover- 
eignty, and  especially  of  eminent  domain ;  and  of  the  au- 
thority of  the  legislature  in  relation  to  them.  Undoubtedly 
the  feudal  system  forms  no  part  of,  and  no  foundation  for, 
our  system  of  legislation,  in  one  sense ;  but  in  another,  it  is 
true  that  some  of  its  important  principles  remain,  as  valid  with 
us  at  this  moment  as  ever  anywhere.  One  of  these  is,  that 
all  property  is  held  from  the  sovereign.  We  hold  that  the 
theory  of  our  law  goes  even  further  on  this  point  than  the 
feudal  system,  because  it  extends  this  principle  to  personal  as 
well  as  real  property.  And  upon  this  principle  rests  the  law 
of  eminent  domain  ;  for  dominium^  from  which  this  phrase 
comes,  bears,  as  its  legal  sense,  property,  and  not  power. 
We  think  that  every  thing,  whatever,  that  a  citizen  of  this 
country  owns,  he  holds  in  the  same  way  as  if  he  could  trace 
his  title  back  to  an  original  grant  from  the  sovereign  ;  and 
this  grant  contained  an  expressed  reservation  of  a  right  by 
the  public  or  the  State,  which  is  the  sovereign,  to  resume  the 
property  or  any  part  of  it,  whenever  it  shall  be  wanted  for 
the  use  of  the  sovereign  ;  payment  or  compensation  being 
made,  or  adequately  provided  for  by  law,  for  all  that  is  thus 
resumed.  And  this  is  what  we  understand  to  be  in  this 
country,  the  law,  or  the  right,  of  eminent  domain,  (i) 

[li)  See  next  note.    In  Richmond  R.  dain.    It  can  vest  on   no  other  founda- 

E.  Co.  V.  The  Louisa   R.   R.  Co.  13  tion,  can  have  no  other  guarantee.     It 

How.    71,    Curtis,  J.,  maintained    that  is  owing  to  these  characteristics  only, 

the  State  may  grant  an  exclusive  right  in   the   original  nature  of  the   tenure, 

to  a  railroad  within  certain  limits,  and  that  appeals  can  be  made  to  the  laws, 

pledge  itself  not  to  allovv  another  to  be  cither  for  the  protection  or  assertion  of 

constructed  within   these    limits.     See  the  rights  of  property.    Upon  any  other 

Piscataqua  Bridge   r.  N.  H.  Bridge,  7  hypothesis,  the  law  of  property  M'ould 

N.  H.  3.5,  per  Parker,  C.  J.  be  simply  the  law  of  force.     Now  it  is 

[i)  Beckman  v.  Saratoga  and  Schen-  undeniable,  that  the  investment  of  pro- 

ectady  R.  R.  Co.  3  Paige,  72,  73;  The  perty  in  the  citizen  by  the  government, 

West  River  Bridge  Co.  v.  Di.K,  6  How.  whether  made  for  a  pecuniary  consid- 

532,  533.  Daniel,  J. :  "  Under  every  estab-  cration,  or  founded  on  conditions  of  civil 

lishedgovernment,  the tenureof  property  or  political  duty,  is  a  contract  between 

is  derived,   mediately  or  immediately,  the  State,  or  the  government  acting  as 

from  the  sovereign  power  of  the  political  its  agent,  and  the  grantee  ;  and  both  the 

body,  organized  in  such  mode  or  exert-  parties  thereto  arc  bound  in  good  faith 

ed  in  such  a  way  as  the  community  or  to  fulfil  it.     But  into  all  contracts,  whe- 

State  may  have  thought  proper  to  or-  ther  made  between  States  and  individu- 


520 


THE  LAW   OF   CONTRACTS. 


PART  ir. 


This  is  then  a  right  reserved  and  possessed  by  the  public, 
and  a  right  which  extends  over  all  property.  And  one  ques- 
tion is,  whether  the  people  themselves  can  give  away  this 
right,  or  grant  property  without  this  reservation.  To  this  it 
might  be  answered  that  the  people,  by  their  constitutions, 
bind  themselves  to  act  only  constitutionally,  and  that  noway 
is  provided  for  such  transfer  or  relinquishment.     But,  with- 


als,  or  between  individuals  only,  there 
enter  conditions  which  arise  not  out  of 
the  literal  terms  of  the  contract  itself; 
they  are  superinduced  by  the  ]n'eoxist- 
inj;  and  higlier  authority  of  the  laws  of 
nature,  of  nations,  or  of  the  community 
to  which  the  parties  belong;  they  are 
jilways  presumed,  and  must  be  presum- 
ed, to  be  known  and  recognized  by  all, 
are  binding  upon  all,  and  need  never, 
therefore,  be  carried  into  express  stipu- 
lation, for  this  could  add  nothing  to 
their  force.  Every  contract  is  made  in 
subordination  to  them,  and  must  yield 
to  tlieir  control,  as  conditions  inherent 
and  paramount,  whenever  a  necessity 
for  tlieir  execution  shall  occur.  Sucli 
a  condition  is  the  right  of  eminent 
domain.  This  right  does  not  operate  to 
impair  the  contract  effected  by  it,  but 
recognizes  its  obligation  in  the  fullest 
extent,  claiming  only  the  fulfilment  of 
an  essential  and  inseparalde  condition. 
Thus,  in  claiming  the  resumption  or 
qualification  of  an  investiture,  it  insists 
merely  on  tiie  true  nature  and  character 
of  the  right  invested.  The  impairing 
of  contracts  inhibited  by  tlie  constitution 
can  scarcely,  by  the  greatest  violence  of 
construction,  be  made  applicable  to  the 
enforcing  of  the  terms  or  necessary  im- 
port of  a  contract;  the  language  and 
meaning  of  the  inhibition  were  designed 
to  cmVtrace  proceedings  attempting  tlic 
interpolation  of  some  new  term  or  con- 
dition foreign  to  the  original  agreement, 
and  tliereforo  inconsistent  with  and 
violative  tliereof.  It,  then,  being  clear 
that  tlie  power  in  (|uestion  not  being 
within  tiie  purview  of  tlie  restriction  im- 
posed by  the  tcntii  section  of  the  first 
article  of  tlic  constitution,  it  remains 
witli  the  States  to  the  full  extent  in 
whicii  it  inlieres  in  every  sovereign 
government,  to  be  exercised  by  them  in 
tiiat  degree  tiiat  shall  by  tiiem  be  deem- 
ed commensurate  with  puljlic  necessity. 
So  long  as  tliey  shall  steer  clear  of  the 
single   predicament  denounced  by  the 


constitution,  shall  avoid  interference 
with  the  obligation  of  contracts,  the 
wisdom,  the  modes,  the  policy,  the 
hardship  of  any  exertion  of  this  power 
arc  subjects  not  within  the  proper  cogni- 
zance of  this  court.  This  is,  in  truth, 
purely  a  question  of  power ;  and,  con- 
ceding the  power  to  reside  in  the  State 
government,  this  concession  would  seem 
to  close  the  door  upon  all  further  con- 
troversy in  connection  with  it.  The 
instances  of  the  exertion  of  this  power, 
in  some  mode  or  other,  from  the  very 
foundation  of  civil  government,  have 
been  so  numerous  and  familiar,  that  it 
seems  somewhat  strange,  at  this  day,  to 
raise  a  doubt  or  question  concerning  it. 
In  fact,  the  whole  policy  of  the  country 
relative  to  roads,  mills,  bridges,  and 
canals,  rests  upon  this  single  power, 
under  which  lands  have  been  always 
condemned ;  without  the  exertion  of  this 
power,  not  one  of  the  improvements 
just  mentioned  could  be  constructed.  lu 
our  country,  it  is  believed  that  the 
power  was  never,  or,  at  any  rate,  rarely, 
questioned,  until  the  opinion  seems  to 
have  obtained,  that  the  right  of  property 
in  a  chartered  corporation  was  more 
sacred  and  intangible  than  the  same 
right  could  possibly  be  in  the  person  of 
the  citizen ;  an  opinion  which  must  be 
without  any  grounds  to  rest  upon,  until 
it  can  be  demonstrated  either  that  the 
ideal  creature  is  more  than  a  person,  or 
the  corporeal  being  is  less,  i'or,  as  a 
question  of  the  power  to  appropriate  to 
l)ublic  uses  the  jiroperty  of  private  per- 
sons, resting  upon  the  ordinary  founda- 
tions of  private  right,  there  would  seem 
to  be  room  neither  for  doubt  nor  difli- 
culty. "  That  the  right  of  eminent 
domain  is  sometimes  founded  on  sove- 
reignty, piiblit;  necessity,  or  implied 
compact,  sec  Enfield  Toll  Bridge  Co. 
V.  Hartford  &  X.  II.  11.  K.  Co.  17  Conn. 
Gl  ;  West  Kiver  Bridge  Co.  v.  Dix,  6 
How.  539.    Per  Woodburi/,  J. 


CH.  VIII.]     THE  CONSTITUTION  OP  THE  UNITED  STATES.  521 

out  now  denying  that  the  public  might,  by  some  sufficient 
act,  divest  themselves  of  the  right  of  eminent  domain,  we 
proceed  to  the  next  question,  which  is,  what  is  the  power 
and  authority  delegated  to  the  legislature  over  or  in  regard 
to  this  right  of  eminent  domain  ? 

We  have  no  doubt  whatever,  that  the  true  answer  to  this 
question  is,  that  the  legislature  derives,  in  part  from  the  Ian-" 
guage  common  to  all  our  constitutions,  in  part  from  implica- 
tions from  their  expressions,  and  in  part  from  the  very  nature 
of  their  functions,  full  authority  to  exercise  an  unlimited  power 
as  to  the  management,  employment  and  use  of  the  eminent 
domain  of  the  State,  and  to  make  all  the  provisions  conse- 
quent upon,  or  necessary  to  the  exercise  of  this  right  or  power, 
but  no  authority  whatever  to  give  this  away,  or  take  it  out  of 
the  people  directly  or  indirectly.  Assuming  this  to  be  a  true 
principle,  let  us  see  how  it  applies.  Let  it  be  certain  that 
the  legislature  can  give  to  any  parties  the  right  to  build  a 
bridge  over  any  stream,  and  between  any  termini ;  and  as 
certain,  that  when  the  bridge  is  built  they  may  destroy  it  for 
public  purposes,  on  paying  or  providing  for  compensation,  (j) 

(  /)  West  River  Bridge  Co.  v.  Dix,  in  the  government  to  resume  or  extin- 

6  How.  507.     In  1793  the  legislature  of  guish  a  franchise.     The  distinction  thus 

Vermont  granted  a  charter  to  the  plain-  attempted  we  regard   as  a  refinement 

tiffs  for  the  term  of  one  hundred  years,  which  has  no  foundation  in  reason,  and 

wiiich  invested  them  with  the  exclusive  one  that,  in  truth,  avoids  the  true  legal 

privilege  of  erecting  a  bridge  over  West  or  constitutional  question  in  these  causes, 

Eiver,  within  four  miles  of  its  mouth,  namely,  that  of  the  right  in  private  per- 

and  with  the  right  of  taking  tolls  for  sons,  in  the  use  or  enjoyment  of  their 

passing  the  same.  Under  tlie  authority  private  property,  to  control  and  actually 

of  a  subsequent  act  of  the  legislature,  a  to  prohibit  the  power  and  duty  of  the 

public  road  was  extended  and  establish-  government  to  advance  and  protect  the 

ed  between  certain  termini,  passing  over  general  good.  We  arc  aware  of  nothing 

the  plaintiffs'  bridge,  converting  it  into  peculiar  to  a  franchise  which  can  class 

a  public  highway,  for  which  compensa-  it  higher,  or  render  it  more  sacred,  than 

tion  was  awarded.     The  new  highway  other  property.  A  franchise  is  property, 

was  laid  out  for  two  miles  on  one  side,  and   nothing   more ;    it   is   incorporeal 

and  one  mile  on  the  other,  over  a  public  property,  and  is  so  defined  by  Justice 

highway,  existing  where  the  bridge  was  Blackstone,  when  treating,  in  his  second 

built,  and  of  which  it  formed  a  part.     It  volume,  chap.  3,  page  20,  of  the  Rights 

was  held  that  the  act  appropriating  the  of  Things.  It  is  its  character  of  property 

franchise  of  the  bridge  for  the  new  pub-  only   which    imparts  to  it   value,    and 

lie  highway,  compensation  being  made,  alone  authorizes   in  individuals  a  right 

was  constitutional.     Daniel.  J.,  deliver-  of  action  for  invasions  or  disturbances  of 

ing  the  opinion  of  the  court,  said  :  "A  its  enjoyment.     F«c/e  Bl.  Comm.  vol.  iii. 

distinction     has     been    attempted,    in  chap.  16,  p.  236,  as    to  injuries   to  this 

argument,  between  the  power  of  a  go-  description  of  private  property,  and  the 

vernment  to  appropriate  for  public  uses  remedies  given  for  redressing  them.    A 

property  which  is  corporeal,  or  may  be  francliise,  therefore,  to   erect  a  bridge, 

said  to  be  in  being,  and  the  like  power  to  construct  a  road,  to  keep  a  ferry,  and 

44* 


522 


THE   LAW   OF   CONTRACTS. 


[part  II. 


But  can  they  not  only  authorize  a  party  to  make  a  bridge,  but 
give  to  the  same  party,  in  express  terms,  the  exclusive  right 
to  build  a  bridge  within  distant  termini,  on  the  one  side  and 
the  other  ?  This  seems  to  be  well  settled ;  nor  does  it  inter- 
fere with  the  eminent  domain  of  the  State,  for  this  exclusive 
right  would  be  a  franchise,  and  this  is  a  property,  and  it  can 
•therefore  be  taken  for  public  purposes,  that  is,  another  bridge 
may  be  authorized  within  these  same  limits,  on  making  com- 
pensation. (A-) 

But  let  us  suppose  the  grant  not  to  be  in  terms  of  any 
exclusive  right ;  but  simply  a  right  to  build  a  bridge  from 
one  spot  to  another;  and  that  this  grant  contains  a  clause, 
promising  on  the  part  of  the  State,  that  no  party  shall  ever 
be  authorized  to  build  another  bridge  within  five  miles,  in 


to  collect  tolls  upon  them,  granted  by 
the  authority  of  the  State,  we  regard  as 
occupying  the  same  position,  with  re- 
spect to  the  paramount  power  and  duty 
of  the  State  to  promote  and  protect  the 
public  good,  as  docs  the  right  of  the 
citizen  to  the  possession  and  enjoyment 
of  his  land  under  his  patent  or  contract 
with  the  State  ;  and  it  can  no  more  in- 
terpose any  obstruction  in  the  way  of 
their  just  exertion.  Such  exertion  we 
hold  to  be  not  within  the  inhibition  of 
the  constitution,  and  no  violation  of  a 
contract.  Tiic  power  of  a  State,  in 
the  exercise  of  eminent  domain,  to  cx- 
tinguibh  immediately  a  franchise  it  had 
granted,  appears  never  to  have  been  di- 
rectly brought  here  for  adjudication,  and 
consequently  has  not  been  heretofore 
formally  propounded  from  this  court. 
But  in  England,  this  power,  to  the  full- 
est extent,  was  recognized  in  the  case  of 
the  Governor  and  Company  of  the  Cast- 
Plate  ^Manufacturers  v.  Meredith,  4 
Term  llcports,  794  ;  and  Lord  Kenyan, 
csijccially,  in  that  case,  founded  solely 
upon  this  power  the  entire  policy  and 
authority  of  all  the  road  and  canal  laws 
of  the  kingdom."  ]>]).  .W.^,  .').34.  Wood- 
bitri/.J.,  in  a  concurring  opinion,  limited 
the  power  of  eminent  domain  over  the 
franchise  of  a  corporation  to  cases  where 
"  the  farther  exercise  of  the  franchise, 
as  a  corfioration,  is  inconsistent  or  in- 
compatible with  the  highway  to  be  laid 
out,"  and  where  also  "  a  clear  intent  is 
manifested  in  the  laws  tliat  one  corpo- 
ration and  its  uses  shall  yield  to  an- 
other, or  another  public  use,  under  the 


supposed  superiority  of  the  latter,  and 
the  necessity  of  the  case."  pp.  543,  544, 
54G.  The  doctrine  of  the  West  Kiver 
Bridge  Co.  v.  Dix,  that  the  franchise  of 
a  corj)oration  may  be  taken  by  the  State 
for  public  uses,  or  the  power  to  take  it 
for  public  uses,  may  be  delegated  by  the 
State  to  another  corporation,  on  provid- 
ing compensation,  is  confirmed  by  nu- 
merous authorities.  S.  C.  16  Verm. 
446  ;  The  Itichmond,  &c.,  R.  R.  Co.  v. 
The  Louisa  R.  R.  Co.  13  How.  71  ; 
Boston  Water  Power  Co.  v.  Boston  and 
Worcester  R.  R.  Co.  23  Pick.  360; 
Armington  v.  Barnet,  15  Vt.  745; 
White  Jiiver  Turnpike  Co.  v.  Verm. 
Central  R.  R.  Co.  21  Id.  591  ;  Enfield 
Toll  Bridge  Co.  v.  Hartford  &  N.  H. 
R.  R.  Co.  *7  Conn.  41,  454  ;  Barber  v. 
Andover,  8  N.  H.  398 ;  Peircc  v.  Som- 
crsworth,  10  Id.  369 ;  Backus  v.  Lelianon, 
11  Id.  19 ;  Rogers  v.  Bradshaw,  20  Johns. 
735  ;  Beekman  v.  Saratoga  and  Sche- 
nectady R.  R.  Co.  3  Paige,  45  ;  Lexing- 
ton and  Ohio  R.  R.  Co.  v.  Applegate,  8 
Dana,  289;  Shorter  v.  Smith,  9  Geo. 
517.  And  the  legislature,  in  delegating 
this  power  to  a  railroad  company,  need 
not  designate  the  specific  land  to  be 
taken.  Boston  AVater  Power  Co.  v. 
Boston  and  Worcester  R.  R.  Co.  23 
Pick.  360. 

(/.:)  West  River  Bridge  Co.  v.  Dix,  G 
IIow.  507 ;  Shorter  v.  Smith,  9  Geo. 
529.  Tiic  exclusive  right  is  a  j)art  of 
the  franchise,  which  may  itself  be  taken. 
Piscataqua  Bridge  v.  N.  U.  Bridge,  7 
N.  U.  35. 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES.  523 

either  direction,  from  either  terminus.  Would  this  promise 
be  binding  on  future  legislatures  ?  (/)  We  confess  that  we 
think  the  question  is  one  of  some  difficulty.  If  no  future 
legislature  can  authorize  another  bridge  within  the  five  miles 
on  payment  of  compensation,  it  must  be  becjiuse  this  legis- 
lature has  granted  away  from  the  public,  for  all  time,  this 
right  of  eminent  domain.  We  are  clear  they  cannot  do  this. 
And  if  it  be  the  certain  effect  of  this  promise  that  no  such 
other  bridge  can  hereafter  be  authorized  on  any  terms,  then  we 
say  the  promise  is  void,  because  the  legislature,  as  an  agent, 
had  made  a  contract  which  they  had  no  authority  whatever  to 
make.  But  why  may  not  a  future  legislature  authorize  ano- 
ther bridge,  with  compensation,  in  this  case,  as  well  as  if  an 
exclusive  right  had  been  given  ?  The  answer  may  be,  that 
here  no  property  whatever  is  given,  and  no  franchise  what- 
ever ;  and  nothing  but  a  bare  promise  made.  The  bridge 
itself  may  be  taken,  for  it  is  property,  or  the  right  to  build 
the  bridge  may  be  taken,  for  this  is  a  franchise,  and  a  fran- 
chise is  property,  but  no  property  passes  by  a  mere  promise 
that  no  other  bridge  shall  be  built ;  and  if  no  property 
passes,  there  is  nothing  which  can  be  taken  in  making  com- 
pensation, and  then  there  is  no  way  of  exercising  this  right 
of  eminent  domain,  or,  which  is  the  same  thing,  this  right  of 
eminent  domain  has  been  transferred  or  destroyed,  which,  as 
we  have  seen,  cannot  legally  be  done.  Such  might  be  the  ar- 
gument, and  although  technical,  we  do  not  deny  its  force  ;  nor 
shall  we  be  able  to  answer  this  question  with  any  certainty, 
until  it  is  settled  by  further  adjudication.  But  at  present  we 
regard  it  as  a  question  between  a  technical  view  of  the  sub- 
ject and  a  substantial  view  of  it,  and  we  are  inclined  to  be- 
lieve that  the  courts  will  construe  such  a  grant  with  such  a 
promise,  as  in  fact  a  grant  of  an  exclusive  right,  and  will  ap- 
ply to  it  the  same  rule  of  law.  (^m) 

(I)  In  the  Richmond,  &c.  R.  R.  Co.  The  Hartford  &  N.  H.  R.  R.  Co.  17 

V.  The  Louisa  R.  R.  Co.  13  How.  71,  Conn.  40, 454.    In  the  pLiintiif's  charter, 

90,  Curtis,  J.,  contended  for  the  power  granted  in  1798,  for  the    building  of  a 

of  the  legislature  to  make  such  a  con-  bridge  over  Connecticut  River,  between 

tract,  but  the  court  declined   to  pass  Enfield  and   Suffield,   it  was   provided 

upon    the    question.     See    Piscataqua  that  no  person  or  persons  should  have 

Bridge  v.  N.  H.  Bridge,  7  N.  H.  35,  69.  liberty   to   build   another    bridge   over 

(m)  The  Enfield  Toll  Bridge  Co.  v.  that  river,  between  the  north  line  of  En- 


524 


THE   LAW   OF   CONTRACTS. 


[part  II. 


It  must  be  remembered  that  the  right  of  eminent  domain 
authorizes  the  taking  of  private  property  by  the  sovereign, 
first,  for  public  purposes ;  and  second,  on  making  or  provid- 
ing for  compensation.  But  one  of  these  conditions  is  as  essen- 
tial as  the  othor;  and  it  is  only  when  both  are  regarded,  that 
private  property  can  lawfully  be  taken.  It  follows,  therefore, 
that  if  there  be  no  public  necessity,  there  is  no  public  right; 
and  that  land  taken  by  the  sovereign,  without  such  necessity, 
although  for  compensation,  is  unlawfully  taken,  (n) 


field  and  tlic  south  line  of  "Windsor, 
during  the  continuance  of  the  charter. 
The  Legislature,  in  1835,  granted  a  char- 
ter to  the  defendants  to  construct  a  rail- 
road from  Hartford  to  the  north  line  of 
the  State  and  thence  to  Springfield, 
Mass..  and  to  build  a  bridge  across  the 
Connecticut  for  the  purposes  of  a  rail- 
road track  exclusively  ;  and  it  was  also 
provided  in  the  charter  that  nothing 
therein  contained  should  be  construed  to 
prejudice  or  impair  the  rights  then  vest- 
ed in  the  plaintiffs.  The  railroad  was 
laid  out  in  the  most  direct  and  feasible 
route,  and  the  company  proceeded  to 
construct  a  bridge,  for  railroad  purposes 
only,  within  the  exclusive  limits  of  the 
Eniield  Toll  Bridge.  It  was  held  that 
a  railroad,  though  belonging  to  a  "pri- 
vate cori)oration,"  is  a  "  public  use  ;" 
and  the  franchise  of  a  toll-bridge  "pri- 
vate property,"  within  the  meaning 
of  the  constitution  ;  that  the  franchise 
of  a  toll-bridge  may  be  taken  for  the 
purposes  of  a  railroad,  by  granting 
compensation  ;  that  the  covenant  in 
this  c;ii>e  was  a  part  of  the  contract 
creating  the  corporation,  and  is  a  part 
of  the  franchise  itself,  and  subject  to 
the  same  laws ;  that  the  reservation  in 
the  defendant's  charter,  that  nothing 
therein  should  be  construed  to  impair 
the  plaintiff's  rights,  did  not  protect 
them  from  the  exercise  of  the  power  of 
eminent  domain,  but  only  .secured  them 
equal  rights  ;  the  right  to  demand  (;om- 
pcnsation,  if  their  franchise  should  be 
impaired  by  the  construction  of  the 
road.  The  case  of  the  Boston  &  Low- 
ell Ilailroad  Co.  v.  The  Salem  &.  Lowell, 
tlie  Boston  &  I\Iaine,  and  the  Lowell 
&  Lawrence  Kailroad  Companies,  de- 
cided by  the  Supreme  Court  of  Massa- 
chusetts, in  Feb.  18.55,  but  not  yet  pub- 
lished in  vjray's  lleports,  turned  upon  a 


question  quite  similar  to  that  considered 
in  the  text.  In  1830  the  jtlaintifis  were 
incorporated,  to  make  a  railroad  from 
Boston  to  Lowell.  The  twelfth  section 
of  their  charter  enacted,  "  That  no 
other  railroad  shall,  within  thirty  years, 
be  authorized  to  be  made  from  Boston, 
Cambridge  or  Charlestown,  lo  Lowell, 
or  to  any  place  M-ithin  five  miles  from 
the  northern  termination  of  the  Boston 
and  Lowell  Kailroad. "  Afterwards  the 
three  defendant  companies  were  succes- 
sively incorporated ;  and  by  their  junc- 
tion and  intersection,  there  was  a  direct 
railroad  route  from  Lowell  to  Boston. 
And  this  action  was  a  suit  in  equity, 
praying  for  an  injunction  against  the 
defendants.  The  court  did  not  decide 
that  the  acts  incorporating  the  three 
defendant  railroad  companies  were  un- 
constitutional, for  this  obvious  reason, 
that  substantial  use  might  be  made  of 
all  these  railroads  without  interfering 
with  the  plain titt's;  and  no  use  of  them, 
in  terras,  infringed  upon  the  charter  of 
the  plaintiffs.  But  the  court  held  that 
the  charter  of  the  Lowell  Kailroad  was, 
in  all  its  provisions  constitutional,  and 
legal,  and  that  the  three  defendant  rail- 
roads, by  their  conjunction,  interfered 
with  the  rights  secured  by  the  charter  of 
the  Lowell  Kailroad,  and  on  that  ground 
grantetl  the  injunction  prayed  for. 

(n)  That  if  the  public  interest  does 
not  require  it,  private  property  cannot 
be  taken  for  public  uses,  although  com- 
pensation be  provided.  See  Beekman 
V.  The  Saratoga  &  Schenectady  11.  II. 
Co.  3  Paige,  45;  West  Kiver' Bridge 
Co.  V.  ])ix,  6  How.  543,  544,  540.  Per 
Woodburj,  J. :  "  The  franchise  of  an  ex- 
isting higlnvay  cannot  be  taken  for  a  new 
highway  of  the  same  character,  laid  out 
upon  the  old  one;  for  that  would  be  es- 
sentially transferring  A's  i)roptrty  to  B.'' 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES.  525 

Let  US  now  recur  to  the  question  we  first  asked,  whether  a 
grant  with  a  covenant  that  the  property  or  franchise  granted 
should  be  forever  free  from  taxation,  can  be  supported. 
Again,  we  admit  that  no  certain  answer  can  now  be  given 
to  this  question.  But,  as  before,  we  say  that  if  this  covenant 
prevents  all  future  taxation,  in  fact,  it  must  be  void  ;  because 
every  legislature  has  the  right  to  determine  what  property 
shall  be  taxed,  without  regard  to  what  may  have  been  done 
by  a  preceding  legislature,  and  without  the  power  of  binding 
a  subsequent  legislature.  But  this  covenant  or  promise  may 
be  supported,  and  no  such  consequence  follow  ;  for  the  prop- 
erty thus  exempted  may  be  taxed,  and  compensation  made. 
It  might  be  said  that  it  involves  an  absurdity  to  suppose  a 
legislature  laying  a  tax  of  an  hundred  dollars,  and  voting  the 
same  sum  to  be  paid  to  the  taxed  party  ;  and  it  mu^t  be  pre- 
cisely that  sum,  or  it  would  not  be  compensation.  And  the 
effect  would  be  only  to  put  the  State  to  the  trouble  and 
expense,  first  of  collecting  the  tax  and  then  of  paying  the 
money.  But,  while  it  may  be  true  that  if  money  be  paid  in 
compensation,  it  must  be  the  same  sum  that  is  taken,  it  is 
not  true  that  the  compensation  must  necessarily  be  made  in 
money.  It  is  at  least  supposable,  that  there  may  be  other 
modes  of  compensation  equally  just,  satisfactory,  and  expe- 
dient. And  then  the  whole  case  might  be  brought,  by  con- 
struction, within  the  principle  of  something  given,  which 
may  be  resumed  upon  compensation.  The  argument,  that  if 
the  legislature  are  permitted  to  have  this  power,  they  might 
carry  it  to  an  excess  which  would  seriously  impair  the  re- 
sources of  the  public,  applies  as  well  to  many  of  their  impor- 
tant and  unquestionable  powers,  of  which  the  abuse  is  easy 
and  might  be  very  injurious.  Moreover,  if  the  exercise  of 
this  power,  and  in  this  way,  was  carried  to  an  extreme,  the 
grant  or  contract  might  perhaps  be  annulled,  as  constructive 
fraud,  (o)  For  in  such  a  case,  it  might  be  inferred,  not  only 
that  the  agent  of  the  public  is  opposed  to  the  will  and  injured 
the  interests  of  his  principal,  but  that  this  misconduct  must 

Boston  Water  Power   Co.   v.  Bostou        (o)  Piscataqua  Bridge  v.  N.  II.  Bridge, 
&  Worcester  Railroad  Corporation,  23    7  N.  H.  63,  64. 
Pick,  393. 


526 


THE    LAW   OF   CONTRACTS. 


[part  II. 


have  been  obvious  to  the  party  benefiting  by  it ;  and  the 
general  principles  of  agency  and  of  contracts  would  avoid 
such  a  transaction,  (ji) 


(p)  In  the  State  of  New  Jersey  v. 
"Wilson,  7  Crancli,  164,  it  was  held  tliat 
an  act  of  tlie  legishiture  of  New  Jersey, 
pivin;;  effect  to  an  airreemcnt  between 
the  tribe  of  the  Dehiwarc  Imlians  and 
the  commissioners  of  New  Jersey,  for 
an  exchange  of  lands,  and  declaring 
that  tlic  lands  to  be  purchased  for  the 
Indians  "  shall  not  hereafter  be  subject 
to  any  tax,"'  by  virtue  of  which  tlie  pro- 
posed exchan<rc  was  subsequently  ef- 
fectetl,  constituted  a  contract  —  and  a 
law,  rci»ealing  the  section  exempting 
the  lands  purchased  from  taxation,  was 
held  unconstitutional  —  although  the  In- 
dians had,  after  the  exchange,  obtained  a 
legislative  act  authorizing  a  sale  of  the 
lands,  and  when  taxed  they  were  owned 
by  their  vendees.  Mars/iaU,  C.  J.  : 
"  Every  requisite  to  the  formation  of  a 
contract  is  found  in  the  proceedings 
between  the  colony  of  New  Jersey  and 
the  Indians.  The  sul)ject  was  a  pur- 
chase on  the  part  of  the  government,  of 
extensive  claims  of  the  Indians,  the  ex- 
tinguishment of  which  would  quiet  the 
title  to  a  large  portion  of  the  province. 
A  proposition  to  this  effect  is  made, 
the  terms  stipulated,  the  consideration 
agreed  upon  ;  which  is  a  tract  of  land 
with  the  privilege  of  exemption  from 
taxation  ;  and  then,  in  consideration  of 
the  arrangement  previously  made,  one 
of  which  this  act  of  assembly  is  stated 
to  be,  the  Indians  execute  their  deed 
of  cession.  This  is  certainly  a  contract, 
clothed  in  forms  of  unusual  solemnity. 
Tlie  privilege,  though  for  the  benefit  of 
the  Indians,  is  annexed,  by  the  terms 
which  create  it,  to  the  land  itself,  not  to 
their  persons.  It  is  for  their  advantage 
that  it  should  be  annexed  to  the  land, 
because,  in  the  event  of  a  sale,  on  which 
alone. the  question  could  become  mate- 
rial, the  value  would  be  enhanced  by  it." 
Of  this  case  it  has  been  observed  that 
there  was  no  restriction  on  the  colonial 
government  —  that  tlie  right  of  the  legis- 
lature to  surrender  or  limit  the  taxing 
power  so  as  to  bind  its  successor,  was 
not  raised  —  and  that  it  may  be  sustain- 
ed on  the  ground  that  it  was  in  the  na- 
ture of  a  Irniiij  with  the  Indians.  Brews- 
ter V.  Hough,  10  N.  II.  14.3  ;  Debolt  v. 
The  Ohio  Life  Insurance  &  Trust  Co.  1 
Ohio  State  U.  58'J.     In  Gordon  v.  Ap- 


peal Tax  Court,  3  How.  133,  the  State 
of  Maryland  had  passed  acts  pledging 
the  faith  of  the  State  not  to  impose  any 
further  tax  on  certain  banks,  upon  their 
accejjting  and  complying  with  certain 
conditions,  as  subscribing  for  the  con- 
struction of  a  road,  which  were  duly  ac- 
cepted and  complied  with.  It  was  held 
that  the  individual  stockholders  were 
thereby  exempted  from  taxation  for 
shares  in  the  stock  of  the  banks,  and  a 
law  imposing  such  a  tax  was  unconsti- 
tutional, as  impairing  the  obligation  of 
a  contract.  The  construction  of  the 
statute  exempting  the  banks,  was  the 
only  question  raised  by  the  defendant's 
counsel,  who  maintained  that  it  exempt- 
ed merely  the  corporate  franchise,  and 
not  the  property  of  the  banks,  or  the 
shares  of  the  individual  stockholders  in 
the  stock.  This  question  of  construc- 
tion is  the  only  one  to  which  the  opinion 
of  the  court  is  directed.  In  Providence 
Bank  v.  Billings,  4  Peters,  .561,  Mar- 
shall, C  J.,  speaking  of  the  taxing  pow- 
er, said  :  "  We  will  not  say  that  a  State 
may  not  reliniiuish  it;  that  a  considera- 
tion sufficiently  valuable  to  induce  a 
partial  release  of  it  mav  not  exist."  In 
Philadelphia  &  Wilmington  R.  R.  Co. 
V.  ISIaryland,  10  How.  394.  the  court 
forbore  to  express  an  opinion  on  the 
question.  The  case  of  New  Jersey  v. 
AVilson,  has  been  followed  in  Connecti- 
cut. Atwater  v.  Woodbridge,  6  Conn. 
223  ;  Osborne  v.  Humphrev,  "  Id.  335  ; 
Parker  v.  Redfield,  10  Id.  49.5  ;  Landon 
?'.  Litchlield,  11  Id.  251  ;  Armington  i\ 
Barnct,  15  Vt.  751;  Herrick  v.  Ran- 
dolph, 13  Vt.  525.  On  the  other  hand 
the  Supreme  Court  of  New  Hampshire 
has  strongly  intimated  an  opinion  that 
the  taxing  power  is  an  essential  attri- 
bute of  sovereignty,  inherent  in  the  peo- 
ple under  a  republican  government,  and 
that  the  legislature  cannot  exempt  land 
from  taxation  so  as  to  bind  future  legis- 
lation, without  an  express  authority  for 
that  jmrposc  in  the  constitution,  or  in 
some  other  way  directly  from  the  pco- 
l)le  themselves.  I'iscataqua  Bridge  v. 
N.  II.  Bridge,  7  N.  II.  69  ;  Brewster  v. 
Hough,  10  Id.  138;  Backus  ?•.  Leba- 
non, 1 1  Id.  24.  The  Supreme  Court  of 
Ohio,  in  elaborate  opinions,  has  recent- 
ly held  that  the  taxing  power  is  a  sovcr- 


CH.  VIII.]     THE  CONSTITUTION  OF  THE  UNITED  STATES. 


527 


It  is  now  well  settled,  and  on  obvious  grounds,  that  the 
abandonment  of  the  taxing  power  is  not  to  be  presumed, 
where  the  deliberate  purpose  of  the  State  to  relinquish  it  does 
not  distinctly  appear,  (q)  And,  on  the  other  hand,  if  the  con- 
stitution of  a  State  exempts  property  from  taxation,  the  legis- 
lature cannot  authorize  its  assessment,  (r) 


SECTION  IV. 


OF  THE   RELATION   OF  THIS   CLAUSE   TO   MARRIAGE  AND  DIVORCE. 


The  effect  of  this  clause  upon  the  subject  of  marriage,  or 
rather  of  divorce,  has  also  been  considered ;  but  not  yet  fully 
ascertained  and  defined  by  adjudication.  It  has  been  con- 
tended that  marriage  is  not  a  contract  which  comes  within 


eign  right  of  the  State,  essential  to  its 
existence,  delegated  by  the  people  to 
the  General  Assembly,  to  be  used  as  a 
means  to  secure  the  ends  of  govern- 
ment, and  that  among-the  powers  dele- 
gated to  tliat  Iiody,  there  is  none  to  sur- 
render or  limit  this  right  so  as  to  abridge 
the  control  of  future  legislation  over  it ; 
that  it  has  power  to  exercise  it  for  the 
purposes  for  which  it  was  granted,  but 
no  power  over  the  right  itself.  Debolt 
V.  Ohio  Life  Insurance  &  Trust  Co.  1 
Ohio  State  R.  563  ;  Mechanics  &  Tra- 
ders' Bank  v.  Debolt,  Id.  591  ;  Knoop  v. 
The  Piqua  Bank,  Id.  603  ;  Toledo  Bank 
V.  Bond,  Id.  622.  But  see  Piqua  Bank 
V.  Knoop,  16  How.  369,  in  Avhich  the 
judgment  of  the  State  Court  in  the  same 
case  was  reversed. 

(q)  A  bank  charter  does  not  carry 
with  it  by  implication  an  exemption 
from  taxation.  Providence  Bank  ?'. 
Billiugs,  4  Peters,  514,  561.  Marshall, 
C.  J. :  "  That  the  taxing  power  is  of 
vital  importance,  tliat  it  is  essential  to 
the  existence  of  government,  are  truths 
which  it  cannot  be  necessary  to  reaffirm. 
They  are  acknowledged  and  asserted  by 
all.  It  would  seem  that  the  relinquish- 
ment of  such  a  power  is  never  to  be 
assumed.  Wc  will  not  say  that  a  State 
may  not  reliuquisii  it ;  that  a  considera- 
tion sufficiently  valuable  to  induce  a 
partial  release  of  it  may  not  exist;  but 
as  the  whole  community  is  interested  in 
retaining  it  undiminished,  that  commu- 
nity has  a  right  to   insist  that   its  aban- 


donment ought  not  to  be  presumed,  in  a 
case  in  which  the  deliberate  purpose  of 
the  State  to  abandon  it  does  not  appear." 
The  Philadelphia  &  Wilmington  E.  E. 
Co.  V.  Maryland,  10  How.  376.  Taney, 
C.  J.:  "  This  court,  on  several  occasions, 
has  held  that  the  taxing  power  of  a 
State  is  never  presumed  to  be  relinquish- 
ed, unless  the  intention  to  relinquish 
is  declared  in  clear  and  unambiguous 
terms."  Portland  Bank  v.  Apthorp,  12 
Mass.  252  ;  Bank  of  Watertown  v.  As- 
sessors of  Watertown,  25  AVend.  486; 
S.  C.  1  Hill,  616,  2  Id.  353;  Brewster 
V.  Hough,  10  N.  H.  138;  Gordon  v. 
Baltimore,  5  Gill,  231  ;  Herrick  v.  Ean- 
dolph.  13  Vt.  525.  Accordingly  it  has 
been  held  that  where  a  charter  prescribes 
the  payment  of  a  certain  per  cent,  on 
the  dividends  of  the  corporation,  as  a 
tax,  that  is  a  temporary  rule  of  taxa- 
tion, which  may  afterwards  be  increased. 
Easton  Bank  v.  Commonwealth,  10  Barr, 
442  ;  Uebolt  v.  Ohio  Life  Insurance  and 
Trust  Co.  1  Ohio  State  E.  563 ;  S.  C. 
16  How.  416.  The  legislature  may  ex- 
empt property  from  taxation  for  the 
time  being,  and  a  town  cannot  levy  a 
tax  upon  it  until  the  law  exempting  it  is 
repealed.  Brewster  v.  Hough,  10  N.  H. 
142;  Capen  v.  Glover,  4  Mass.  305. 
But  a  town  cannot,  by  a  grant  or  stipu- 
lation in  a  conveyance,  exempt  property 
thereafter  from  taxation.  Mark  v.  Jones, 
1  Foster,. N.  H.  393. 

(;•)  Hardy  v.  Walthara,  7  Pick.  108  ; 
Brewster  v.  Hough,  10  N.  H.  144. 


528 


THE   LAW   OF   CONTRACTS. 


[part  II. 


the  scope  of  this  clause ;  but  it  may  be  considered  that  it  has 
been  settled,  that  this  clause  may  operate  on  the  contract  of 
marriage ;  leaving  only  the  question  as  to  what  is  the  effect 
and  operation  of  the  clause.  It  might  seem,  on  general  prin- 
ciples, that  if  it  be  applicable  at  all,  it  must  go  so  far  as  to 
prevent  any  divorce  for  reasons  which  were  not  sufficient 
ground  for  divorce  when  the  marriage  was  contracted.  Or, 
in  other  words,  that  a  legislature  might  pass  what  law  it 
would  as  to  divorce,  limiting  its  effect  to  marriages  which 
should  take  place  after  the  law  was  enacted.  But  that  any 
law  creating  new  grounds  or  new  facilities  for  the  divorce  of 
parties  married  before  the  law  was  passed,  would  impair  the 
obligation  of  the  marriage  contract,  and  therefore  be  void. 
But  we  have  not  sufficient  adjudication  for  positively  assert- 
ing this  as  law.  {s)  And  in  one  very  important  case,  in  which, 
however,  it  is  true  that  whatever  touches  marriage  is  spoken 
altogether  obiter,  it  is  impfied  that  any  divorce  is  valid  which 
is  granted  for  any  cause  which  may  be  regarded  as  a  breach 
of  the  marriage  contract ;  for  if  this  contract  be  broken, 
there  is   no  obligation  left  to  be  impaired.  (^)     If  this  be  so, 


(s)  It  was  held  in  Clark  v.  Clark,  10 
N.  H.  380.  that  a  general  law  providing 
for  the  dissolution  of  existing  marriages, 
for  transactions  occurring  subseqmnt 
to  its  passage,  which  were  not  grounds 
of  divorce  when  tlio  marriage  was  con- 
tracted, is  not  within  the  prohibition  of 
this  clause  of  the  constitution. 

(t)  Dartmouth  College  v.  Woodward, 
4  Wheat.  yl8.  Marshall,  C.  J.:  "The 
provision  of  the  constitution  never  has 
been  understood  to  embrace  other  con- 
tracts than  those  which  rcs])ect  ]iroperty, 
or  some  object  of  value,  and  confer  riglits 
wliich  may  be  asserted  in  a  court  of 
justice.  It  never  has  been  understood 
to  restrict  the  general  right  of  the  legis- 
lature to  legislate  on  the  sulyect  of  di- 
vorces." Son/,  J.,  pp.  G9.5-G97  :  "  As 
to  the  case  of  tlie  contract  of  marriage, 
wliich  the  argument  supposes  not  to  be 
within  the  reach  of  the  prohibitory 
clause,  because  it  is  a  matter  of  civil 
institution,  I  profess  not  to  feel  the 
weight  of  tlic  reason  assigned  for  the 
exception.  In  a  legal  sense,  all  con- 
tracts recognized  as  valid  in  any 
country,  may  l)e  ])roperly  said  to  be 
matters  of  civil  institution,  since   they 


obtain  their  obligation  and  construction 
pire  loci  contractus.  Titles  to  land,  con- 
stituting part  of  the  public  domain,  ac- 
cpiircd  by  grants  under  the  provisions 
of  existing  laws,  by  private  persons,  are 
certainly  contracts  of  civil  iii.stitution. 
Yet  no  one  ever  supposed,  that  when 
acquired  buna  Jida,  they  were  not  beyond 
the  reach  of  legislative  revocation.  And 
so,  certainly,  is  the  established  doctrine  of 
this  court.  ...  A  fjeneral  law  regu- 
lating divorces  from  the  contract  of  mar- 
riage, like  a  law  regulating  remedies  in 
other  cases  of  breaclics  of  contracts,  is  not 
necessarily  a  law  impairing  the  oUigalion 
of  such  a  contract.  3d  John.  Cas.  73. 
It  may  be  the  only  cftoctual  mode  of 
enforcing  tlic  obligations  of  the  contract 
on  both  sides.  A  law  punishing  a  breach 
of  a  contract,  by  imi)0sing  a  forfeiture 
of  the  rights  ac<iuired  under  it,  or  dis- 
solving it  because  the  mutual  oblig- 
ations were  no  longer  observed,  is  in 
no  correct  sense  a  law  impairing  the 
obligations  of  the  contract.  Could  a  law, 
com])elling  a  spccitic  i)erformance,  by 
giving  a  new  remedy,  be  justly  deemed 
an  excess  of  legislative  j)owcr  ?  Thus 
far  the  contract  of  marriage  has  been 


CH.  VII.]         THE  CONSTITUTION  OF  THE  UNITED  STATES. 


529 


the  operation  of  this  clause  upon  the  contract  of  marriage, 
would  be  confined  to  preventing  a  divorce  at  the  will  of  one 
party  and  against  the  will  of  the  other  party,  and  for  no 
cause.  It  should  be  added  that  there  is,  at  least,  one  judicial 
decision,  that  marriage  is  not  only  a  contract,  but  much 
more  than  a  contract,  and  so  much  more  that  it  is  not  to  be 
considered  as  within  the  scope  or  intention  of  this  clause  of 
the  constitution,  (u) 


considered  with  reference  to  general  laws 
regulating  divorces,  upon  breaches  of 
that  contract.  But  if  the  argument 
means  to  assert,  that  the  legislative 
power  to  dissolve  such  a  contract,  with- 
out any  breach  on  either  side,  ar/ninst  the 
wishes  of  the  parties,  and  without  any 
judicial  inquiry  to  ascertain  a  breach,  I 
certainly  am  not  prepared  to  admit  sucli 
a  power,  or  that  its  exercise  would  not 
entrench  upon  the  prohibition  of  the 
constitution.  If,  under  the  faith  of  exist- 
ing laws,  a  contract  of  marriage  be  duly 
solemnized,  or  a  marriage  settlement  be 
made,  (and  marriage  is  always  in  law 
a  valuable  consideration  for  a  contract,) 
it  is  not  easy  to  perceive  why  a  dis- 
solution of  its  obligations,  without  any 
default  or  assent  of  the  parties,  may  not 
as  well  fall  within  the  prohibition,  as 
any  other  contract  for  a  valuable  con- 
sideration. A  man  has  quite  as  good  a 
right  to  his  wife,  as  to  the  property  ac- 
quired under  a  marriage  contract.  He 
has  a  legal  right  to  her  society  and  her 
fortune;  and  to  divert  such  right  with- 
out his  default,  and  against  his  will, 
would  be  as  flagrant  a  violation  of  the 
principles  of  justice,  as  the  confiscation 
of  his  own  estate.  I  leave  this  case, 
however,  to  be  settled  when  it  shall 
arise.  I  have  gone  into  it,  because  it 
was  urged  with  great  earnestness  upon 
us,  and  required  a  reply.  It  is  sufficient 
now  to  say,  that  as  at  present  advised, 
the  argument  derived  from  this  source 
does  not  impress  my  mind  with  any  new 
and  insurmountable  difficulty."  The 
dicta  of  Story,  J.,  arc  ratified  in  Pouder 
V.  Graham,  4  Florida,  23.  In  Holmes 
V.  Holmes,  4  Barb.  295,  it  was  held  that 
as  respects  property  the  contract  of  mar- 
riage must  stand  upon  the  same  footing 
as  other  contracts,  and  that  where  the 
husband,  by  virtue  of  the  marriage  re- 
lation or  as  incident  thereto,  becomes 
entitled  to  the  property  of  the  wife,  a 
law  passed  subsequent  to  their  marriage, 


and  vesting  her  property  solely  in  her- 
self, as  her  own  sole  and  separate  pro- 
perty, is  void  as  impairing  the  obligatioa 
of  a  contract. 

(m)  Maguire  v.  Maguire,  7  Dana,  183, 
184.  Vcr  Robertson,  C.  J.:  "Marriage, 
though  in  one  sense  a  contract,  because, 
being  both  stipulatory  and  consensual, 
it  cannot  be  valid  without  the  spon- 
taneous concurrence  of  two  competent 
minds,  is  nevertheless,  sui  generis,  and 
unlike  ordinary  or  commercial  contracts, 
is  publici  juris,  because  it  establishes 
fundamental  and  most  important  do- 
mestic relations.  And,  therefore,  as  every 
well  organized  society  is  essentially 
interested  in  the  existence  and  harmony 
and  decorum  of  all  its  social  relations, 
marriage,  the  most  elementary  and  use- 
ful of  tlicm  all,  is  regulated  and  con- 
trolled by  the  sovereign  power  of  the 
State,  and  cannot,  like  mere  contracts, 
be  dissolved  by  the  mutual  consent  only 
of  the  contracting  parties,  but  may  be 
abrogated  by  the  sovereign  will,  either 
with  or  without  the  consent  of  both  par- 
ties, whenever  the  pulilic  good,  or  justice 
to  both  or  either  of  the  parties,  will  be 
thereby  subserved.  Such  a  remedial  and 
conservative  power  is  inherent  in  every 
independent  nation,  and  cannot  be  sur- 
rendered or  subjected  to  political  re- 
straint or  foreign  control,  consistently 
with  the  public  welfare.  And,  therefore, 
marriage,  being  much  more  than  a  con- 
tract, and  depending  essentially  on  the 
sovereign  will,  is  not,  as  we  presume, 
embraced  by  the  constitutional  inter- 
diction of  legislative  acts  impairing  the 
obligation  of  contracts.  The  obligation 
is  created  by  the  public  law,  subject  to 
the  public  will,  and  not  to  that  of  the 
parties.  So  far  as  a  dissolution  of  a 
marriage,  -by  public  authority,  may  be 
for  the  public  good,  it  may  be  the  exer- 
cise of  a  legislative  function  ;  but  so  far 
as  it  may  be  for  the  benefit  of  one  of 
the  parties,  in  consequence  of  a  breach 


VOL.  II. 


45 


530 


THE   LAW   OF   CONTRACTS. 


[part  II. 


SECTION  V. 


OF   THE  RELATION   OF  THIS   CLAUSE   TO   BANKRUPTCY   AND 
INSOLVENCY. 

>  The  language  of  this  clause  is  exceedingly  general.  It  com- 
prehends all  contracts;  and  whatever  may  have  been  in  the 
minds  of  the  framers  of  the  constitution  (y) — and  argu- 
ments have  been  strongly  urged  on  this  ground,  to  limit  the 
operation  of  this  clause  —  it  is  now  quite  settled  that  the 
clause  is  to  be  construed  by  itself,  so  far,  at  least,  that  there 
is  no  contract  which  a  state  law  can  affect,  which  is  not 
within  the  prohibition.  Hence  a  contract  between  two 
States  is  a  contract   in  this  sense  and  for  this  purpose,  {w) 


of  the  contract  by  the  other,  it  is  un- 
doubtedly judicial."  In  WhitCf.  White,  5 
Barb.  474,  Mason,  J.,  held  that  marriage 
is  not  a  contract,  in  ihe  common  law  or 
popular  sense  of  tlie  term,  and  tliat  the 
relation  of  husband  and  wife  is  not  with- 
in the  prohil)ition  of  the  constitution 
respecting  contracts,  and  came  to  a  con- 
clusion adverse  to  that  intimated  by 
Stori/,  J.,  in  Dartmouth  College  v.  Woo(l- 
ward.  In  Londonderry  v.  Chester,  2  N. 
H.  268,  per  Woodbury,  J.,  marriage  was 
held  to  be  a  mere  civil  contract. 

(())  Dartmouth  College  v.  Woodward, 
4  Wheat.  5\S,  644,  per  Marshall,  C.  J. : 
"  It  is  more  than  possible,  that  tlie  pre- 
servation of  rights  of  this  description 
was  not  particularly  in  the  view  of  the 
framers  of  the  constitution,  when  the 
clause  under  consideration  was  intro- 
duced into  that  instrument.  It  is  pro- 
bable, that  interferences  of  more  frequent 
occurrence  to  which  the  temptation  was 
stronger,  and  of  which  the  mischief  was 
more  extensive,  constituted  the  great 
motive  for  imposing  this  restriction  on 
the  state  legislatures.  But  although  a 
particular  and  a  rare  case  may  7iot,  in 
itself,  be  of  sufficient  m.agnitude  to  in- 
duce a  rule,  yet  it  must  be  governed  by 
the  rule  when  established,  unless  some 
plain  and  strong  reason  for  excluding  it 
can  be  given.  It  is  not  enough  to  sa}', 
that  this  particular  case  was  not  in  the 
mind  of  the  convention,  when  the  arti- 
cle was  framed,  nor  of  the    American 


people,  when  it  was  adopted.  It  is  ne- 
cessary to  go  further,  and  to  say  that, 
had  this  particular  been  suggested,  the 
language  would  have  been  so  varied, 
as  to  exclude  it,  or  it  would  have  been 
made  a  special  exception.  The  case 
being  within  the  words  of  tiie  rule,  must 
be  within  its  operation  likewise,  unless 
there  be  something  in  the  literal  con- 
struction so  obviously  absurd,  or  mis- 
chievous, or  repugnant  to  the  general 
spirit  of  the  instrument,  as  to  justify 
those  who  expound  the  constitution  in 
making  it  an  exception." 

(«')  Green  v.  Biddle,  8  Wheat,  I  ; 
Hawkins  v.  Barney,  5  Peters,  4.57.  A 
contract  of  a  State  with  an  individual, 
whether  it  assumes  the  form  of  a  grant 
or  not,  is  a  contract  Avithin  the  prohibi- 
tion of  the  constitution.  New  Jersey  v. 
Wilson,  7  Cranch,  104;  Fletcher  v. 
Peck,  6  Id.  87.  Marshall,  C.  J. :  "  When, 
then,  a  law  is  in  its  nature  a  contract ; 
when  absolute  rights  have  vested  under 
the  contract;  a  repeal  of  the  law  cannot 
divest  those  rights  ;  and  the  act  of  an- 
nulling them,  if  legitimate,  is  rendered 
so  by  a  power  ajiplicable  to  the  case  of 
every  individual  in  the  community." 
Winter  !'.  Jones,  10  Geo.  190;  Provi- 
dence Bank  v.  Billings,  4  Peters,  560. 
In  Woodruff  v.  Trafnall,  10  How.  190, 
the  State  of  Arkansas  chartered  a  bank 
of  which  it  owned  all  the  stock,  and 
j)rovidcd  in  the  charter  that  the  bills  of 
the  bank  should  be  received  inpayment 


CH.  VII.]        THE  CONSTITUTION  OF  THE  UNITED  STATES.  531 

This  clause  leaves  no  room  for  any  question  as  to  the  degree 
in  which  the  obligation  of  a  contract  is  impaired,  in  order  to 
come  within  the  prohibition.  Any  change  which  bears  inju- 
riously upon  the  obligation,  is  fatal,  and  avoids  the  law  which 
makes  this  change;  but  we  shall  find  a  very  important  dis- 
tinction taken  between  the  obligation  of  a  contract,  and  the 
remedy  upon  the  contract,  when  we  come  to  the  considera- 
tion of  what  must  be  our  next  topic,  namely,  the  effect  and 
operation  of  this  clause  upon  the  insolvent  laws  of  the 
several  States. 

The  constitution  gives  to  congress  the  power  of  making 
a  bankrupt  law.  But  it  seems  to  be  settled  that  this  power 
is  not  exclusive  ;  because  the  several  States  may  also  make 
distinct  bankrupt  laws,  each  State  for  itself,  [x)  In  fact, 
however,  no  State  has  enacted  a  bankruptcy  law  under  that 
name;  but  all  or  nearly  all  have  insolvent  laws,  or  at  least 
laws  making  provision  of  some  sort  for  cases  of  insolvency  ; 
and  some  of  these  insolvent  laws  seem  to  contain  all  the  ele- 
ments and  characteristics  which  should  entitle  them  to  the 
name  of  bankrupt  law.  (y/)  But,  on  the  one  hand,  our  several 
States  are  distinct  and  independent  sovereignties,  and  in  some 
respects  foreign  to  each  other.  Yet,  on  the  other,  the  inter- 
course between  the  citizens  of  the  several  States,  and  the  in- 
timacy of  their  social  and  business  relations,  is  as  close  and 
constant  as  between  fellow  citizens  of  the  same  government 
or  the  same  city.  From  this  circumstance  there  arises  one 
very  great  difficulty  in  regard  to  the  operation  of  these  insol- 
vent laws  ;  and  this  is  much  increased  when  it  is  complicated 
with  those  which  spring  from  the  application  of  this  prohibi- 
tory clause  of  the  constitution.     And  such  has  been  the  sin- 

of  debts  due  the  State  ;  it  was  held  that  between  a  bankrupt  and  an  insolvent 
a  contract  subsisted  between  the  State  law,  so  far  as  the  interpretation  of  this 
and  the  holders  of  the  notes,  and  that  a  provision  of  the  constitution  is  con- 
repeal  of  that  provision  could  not  affect  cerned.  Sturges  v.  Crowninshield,  4 
notes  in  circulation  at  the  time  of  the  re-  Wheat.  122.  Marshall,  C.  J.:  "The 
peal,  with  which  the  holder  might  dis-  difticulty  of  discriminating  with  any 
charge  any  debt  due  from  him  to  the  State,  accuracy  between  insolvent  and  bank- 

{x)    Sturges     v.    Crowninshield,    4  rupt  laws  should  lead  to  the  opinion  that 

Wheat.  122;  Ogden  v.  Saunders,  12  Id.  a  bankrupt  law  may  contain  those  re- 

213;  Blanchard  v.  Eussell,  13  Mass.  1.  gulations  which  are  generally  found  in 

Contra.  Golden  v.  Prince,  3  Wash.  C.  insolvent  laws ;  and  that   an  insolvent 

C.  313.  law  may  contain  those  which  are   com- 

(y)  There  seems  to  be  no  distinctioa  men  to  a  bankrupt  law." 


532  THE  LAW  OF  CONTRACTS.  [PART  II. 

gular  character  of  the  adjudication  upon  this  subject ;  the 
same  courts  presenting,  in  dificrent  cases,  very  different  views 
of  the  same  question  ;  few  of  them  of  principal  importance 
being  decided  with  unanimity;  and  in  some  instances,  differ- 
ent judges  being  led  to  identical  conclusions  by  reasons 
which  seem  to  be  antagonistic ;  that  we  are  hardly  prepared 
to  say  that  any  one  of  these  questions  is  as  yet  finally  and 
positively  settled. 

Thus,  the  distinction  is  taken  between  the  obligation  and 
the  remedy,  both  in  the  courts  of  the  United  States,  and  in 
those  of  the  States.  But  we  can  hardly  say  what  it  means. 
If  applied  only  to  imprisonment  of  the  person,  there  is  at 
least  no  difficulty  in  understanding  it ;  and  then  we  begin 
with  saying  that  a  State  may  pass  a  valid  act  lessening  or 
abolishing  imprisonment  for  a  debt  contracted  before  the 
act ;  (z)  and  from  this  we  may  go  on  to  sustain  an  insolvent 
law,  which  provides  that  there  shall  be  no  arrest  of  the  person, 
*(for  if  no  imprisonment,  it  would  be  absurd  to  arrest)  for 
any  debt  of  one  who  comes  under  the  protection  of  the  law. 
This  would  suggest  as  the  next  question,  whether  everything 
of  process  as  well  as  imprisonment,  comes  under  the  head  of 
remedy,  and  not  of  obligation.  It  is  not  easy  to  draw,  on 
principle,  a  distinct  and  unquestionable  line  here.  Imprison- 
ment is  the  last  and  most  effectual  remedy ;  but  it  is  only 
the  last  of  many  successive  steps,  which  are  linked  together 
in  unbroken  series.  The  first  step  may  be  arrest  of  the  person, 
or  attachment  of  the  goods,  or  only  the  summons  or  a  com- 
mand to  pay  the  debt,  like  the  old  original  writ.  Whatever  it 
may  be,  it  is  not  easy  to  see  why  it  is  not  of  the  same  nature, 
and  under  the  same  category,  as  the  last  step  to  which  it 
leads.  In  other  words,  -is  not  all  resort  to  law  used  for  the 
purpose  of  obtaining  the  remedies  of  the  law ;  and  are  not 
civil  processes  parts  of  these  remedies,  differing  only  as  they 
belong  to  different  stages  of  the  process,  and  to  different  de- 
grees in  the  recusancy  of  the  debtor.  If  so,  every  State  has 
perfect  power  over  all  its  processes  ;  and  therefore  it  may  pro- 

(2)  Sturge8t;.Crowninshielcl,4  Wheat.  Robinson,  1  Chip.  257  ;  Fisher  v.  Lacky, 

122;    Ma^on    r.    Ilaile,     12    Id.   370;  6  Bhickf.  373 ;  Woodfin    v.   Hooper,  4 

Beers  V.  JIaughton,  9  Peters,  359 ;  Gray  Humph.  13;    Bronsoa  v.  Newberry,  2 

V.   Muuroe,   1    McLean,   528 ;   Stair  v.  Doug.  38. 


CH.  VII.]        THE  CONSTITUTION  OF  THE  UNITED  STATES. 


533 


vide  as  to  any  debt,  that  no  process  shall  ever  after  issue,  by 
which  any  thing  of  compulsion  shall  be  exerted  upon  the 
debtor,  and  it  shall  be  left  entirely  to  his  own  discretion  and 
pleasure  as  to  the  payment  of  the  debt;  and  this  law  is  pro- 
tected by  this  view  of  the  constitution  of  the  .United  States, 
because  it  does  not  impair  the  obligation  of  that  debt.  It  is 
at  least  equally  difficult  to  deny  that  the  courts  have  made 
and  perhaps  established  this  distinction  between  the  remedy 
and  the  obligation,  or  to  avoid  these  conclusions,  as  logical 
if  not  legal.  But  a  distinction  is  taken  here,  and  on  so 
much  authority,  that  it  may  be  regarded  as  established. 
It  is,  that  while  exemption  from  arrest,  or  from  imprison- 
ment, affects  only  remedy,  an  exemption  of  the  property 
from  attachment,  or  a  subjection  of  it  to  a  stay-law,  or 
appraisement  law,  impairs  the  obligation  of  the  contract. 
And  such  a  statute  can  be  enforced  only  as  to  contracts 
made  subsequently  to  the  law.  (a)     At  the  same  time,  how- 


(n)  There  has  of  late  been  a  tendency 
in  the  courts  of  the  United  States,  to 
render  the  distinction  between  the  obliga- 
tion and  the  remedy  to  a  great  extent 
inoperative,  by  regarding  the  remedy  to 
be  so  connected  with  the  obligation,  as 
in  many  respects  to  be  a  part  of  it,  and 
holding  unconstitutional  such  legislation 
on  remedies  existing  at  the  time  the 
contract  was  made,  as,  by  a  change  of 
the  remedy,  takes  away  or  materially 
impairs  the  creditor's  rights.  Bronson 
V.  McKenzie,  1  How.  311.  Sec  Green 
V.  Biddle,  8  Wheat.  1,  75.  Thus  a  law 
of  the  State  of  Illinois,  providing  that  a 
sale  shall  not  be  made  of  property  levied 
on  under  an  execution,  unless  it  would 
bring  two  thirds  of  its  valuation  accord- 
ing to  the  appraisement  of  three  house- 
holders, was  held,  as  regards  contracts 
made  prior  to  its  passage,  unconstitu- 
tional. McCracken  y.  Haywood,  2  How. 
608,  G12.  Fev  Baldtuin,  J. :  "  In  placing 
the  obligation  of  contracts  under  the  pro- 
tection of  the  constitution,  its  framers 
looked  to  the  essentials  of  tlie  contract, 
more  than  to  the  forms  and  modes  of 
proceeding  by  which  it  was  to  be  carried 
into  execution  ;  annulling  all  State 
legislation  which  impaired  the  obliga- 
tion, it  was  left  to  the  States  to  prescribe 
and  shape  the  remedy  to  enforce  it. 
The  obligation  of  a  contract  consists  in 
its  binding    force    on   the   party  who 

45* 


makes  it.  This  depends  on  the  laws  in 
existence  when  it  is  made;  these  are 
necessarily  referred  to  in  all  contracts, 
and  forming  a  part  of  them  as  the  mea- 
sure of  the  obligation  to  perform  them 
by  the  one  party,  and  the  right  acquired 
by  the  other.  There  can  be  no  other 
standard  by  which  to  ascertain  the  ex- 
tent of  cither,  than  that  which  the  terms 
of  the  contract  indicate,  according  to 
their  settled  legal  meaning ;  when  it 
becomes  consummated,  the  law  defines 
the  duty  and  the  right,  compels  one 
party  to  perform  the  thing  contracted 
for,  and  gives  the  otiier  a  right  to  en- 
force the  performance  by  the  remedies 
then  in  force.  If  any  subsequent  law 
affect  to  diminish  the  duty,  or  impair 
the  right,  it  necessarily  bears  on  the  ob- 
ligation of  tlie  contract,  in  favor  of  one 
party,  to  the  injury  of  the  other ;  hence 
any  law  which  in  its  operation  amounts 
to  a  denial  or  obstruction  of  the  rights 
accruing  by  a  contract,  though  profess- 
ing to  act  only  on  the  remedy,  is  directly 
obnoxious  to  the  prohibition  of  the  con- 
stitution." And  again,  613,  614:  "  The 
obligation  of  the  contract  between  the 
parties  in  this  case,  was  to  perform  the 
promises  and  undertakings  contained 
therein ;  the  right  of  the  plaintiff  was  to 
damages  for  the  breach  thereof,  to  bring 
suit  and  obtain  a  judgment,  to  take 
out  and  prosecute  an  execution  against 


534 


THE    LAW   OF    CONTRACTS. 


[part  II. 


ever,  it  is  admitted  that  a  State  may  make  partial  exemp- 
tions of  property,  as  of  furniture,  food,  apparel,  or  even  a 
homestead.  (6) 

It  is  to  be  observed,  on  this  point,  that  there  can  be  no  dif- 
ference between  a  debt  existing  before  and  one  contracted 
after  the  law  is  made.  There  may  be  a  difference  as  to  the 
propriety  or  expediency  of  the  law,  but  none  as  to  the  right 
of  the  State  to  pass  the  law  ;  for  this  right  is  perfect,  except 
so  far  as  it  is  controlled  by  this  clause  in  the  constitution. 
And  on  this  ground  it  has  been  held  that  nothing  in  the  con- 
stitution of  the  United  States  prevented  a  State  from  pass- 
ing a  valid  law  to  divest  rights  which  had  been  vested  by  law 
in  an  individual,  because  this  was  not  a  contract,  (c) 


the  defendant,  till  the  judgment  was 
satisfied,  pursuant  to  the  existing  laws 
of  Illinois.  These  laws  giving  these 
rights  were  as  perfectly  binding  on  the 
defendant  and  as  much  a  part  of  the 
contract,  as  if  they  had  been  set  forth  in 
its  stipulations  in  the  very  words  of  the 
law  relating  to  judgments  and  execu- 
tions. If  tiie  defendant  has  made  such 
an  agreement  as  to  authorize  a  sale  of 
his  property,  which  should  be  levied  on 
by  the  .^^heriff,  for  such  price  as  should 
be  bid  for  it  at  a  fair  public  sale,  on 
reason al)lc  notice,  it  would  have  con- 
ferred a  right  on  the  plaintiff,  which  the 
constitution  made  inviolable ;  and  it 
can  make  no  diftcrence  whether  such 
right  is  conferred  by  the  terms  or  law 
of  the  contract.  Any  subsequent  law 
which  denies,  ol)structs,  or  impairs  this 
right,  by  superadding  a  condition  that 
there  shall  be  no  sale  for  any  sum  less 
than  the  value  of  the  property  levied  on, 
to  be  ascertained  by  appraisement,  or  any 
other  mode  of  valuation  than  a  public 
sale,  affects  the  obligation  of  the  con- 
tract, as  much  in  the  one  case  as  the 
other,  for  it  can  be  enforced  only  by  a 
sale  of  the  defendant's  property,  and  the 
prevention  of  such  sale  is  tiic  denial  of 
a  right.  The  same  power  in  a  State 
legislature  may  be  carried  to  any  extent, 
if  it  exists  at  all;  it  may  prohiliit  a  sale 
for  less  than  the  whole  apjiraised  value, 
or  for  three  fourths,  or  nine  tenths,  as 
well  as  for  two  tliirds ;  for  if  the  power 
can  1)C  exercised  to  any  extent,  its  ex- 
ercise must  be  a  matter  of  uncontrolla- 
ble discretion,  in  passing  laws  relating  to 
the  remedy,  which  are  regardless  of  the 


effect  on  the  right  of  the  plaintiff.  These 
cases  have  been  the  subject  of  much 
comment  in  the  State  courts.  See  cases 
cited  in  the  next  note. 

(b)  It  has  been  held  in  New  York, 
that  a  law  exempting  property  of  the 
debtor  from  execution,  which  was  liable 
to  execution  when  the  debt  was  con- 
tracted, is  unconstitutional.  Quacken- 
bush  V.  Danks,  1  Den.  128;  S.  C.  3  Id. 
.594.  In  the  court  of  appeals  the  judges 
were  equally  divided  on  the  question, 
and  the  judgment  of  the  Supreme  Court 
was  affirmed.  1  Comst.  129  ;  Vedder 
V.  Alkenbrack,  0  l?arb.  .327.  On  the 
other  hand,  it  is  held  in  Michigan,  that 
property  may  be  exempted  from  execu- 
tion for  debts  contracted  before  the  law 
of  exemjition  was  enacted.  IJockwell 
V.  Ilubbell.  2  Doug.  38.  See  Bronson 
V.  Newberry,  2  Id.  38  ;  Evans  v.  Mont- 
gomery, 4  W.  &  S.  218;  Uamgardener 
V.  The  Circuit  Court,  4  Miss.  50  ;  Tar- 
plcy  V.  Ilamcr,  9  S.  &  M.  310. 

(c)  Caldev  v.  Bull,  3  Dall.  386 ;  Sat- 
terlee  v.  Mattherson,  2  Peters,  412; 
"Watson  V.  ISIercer,  8  Id.  89  ;  Charles 
River  Bridge  v.  Warren  Bridge,  II 
Peters,  549,  540;  Baltimore  and  Sus- 
quehannah  II.  K.  Co.  v.  Nesbit,  10  How. 
395 ;  White  v.  White,  5  Barb.  48 ; 
Baugher  v.  Nelson,  9  Gill,  299.  So  in 
Wilson  V.  Ilardesty,  1  Mary.  Cii.  CG,  it 
was  held  that  a  law  which  limited  tlic 
defence  to  a  usurious  contract  to  the 
excessive  interest,  was  valid,  although 
at  the  time  the  contract  was  made  there 
was  a  law  declaring  such  a  contract  ab- 
solutely void. 


en.  VII.]        THE  CONSTITUTION  OF  THE  UNITED  STATES.  535 

We  have,  therefore,  to  inquire  which  of  these  insolvent 
laws  affect  only  the  remedy,  and  which  go  further  and  dis- 
charge the  debt.  It  may  be  found  that  most  are  in  the 
nature,  or  use  the  language,  of  a  cessio  bonorum,  leaving  the 
debt  still  existing;  some,  however,  discharge  it  altogether. 
And  perhaps  it  may  be  gathered  from  the  adjudications,  up 
to  this  time,  that  an  insolvent  law  of  a  State,  which  dis- 
charges the  debt,  is  valid  only  as  it  refers  to  contracts  made 
after  the  law  was  passed;  and  that  if  an  insolvent  law  makes 
no  distinction  in  this  respect,  it  would  be  construed  as  in- 
tended only  to  apply  to  subsequent  debts,  and  therefore  as 
valid;  but  if  it  purports  expressly  to  discharge  existing  and 
antecedent  debts,  it  is  for  this  reason  void  and  of  no  effect 
whatever,  (d)  And  if  it  does  not  discharge  the  debt,  but  only 
exempts  the  person  from  imprisonment,  if  he  surrenders  all 
his  property  for  all  his  debts,  this  is  valid,  because  it  affects 
only  remedy  ;  and  it  would  seem  to  be  valid  equally  whether 
it  applies  to  all  existing  debts  or  only  to  subsequent  debts,  (e) 
On  the  other  hand,  if  it  not  only  exempts  the  person  from 
imprisonment,  but  also  the  property  from  attachment  on 
mesne  process  and  on  execution,  this  would  be  held  void  as 
against  the  constitution,  because  it  impaired  the  obligation  of 
the  contract.  But  as  we  have  already  intimated,  we  say  this 
on  authority,  without  undertaking  either  to  maintain  or  to 
define  this  distinction,  on  reason  or  on  principle,  any  further 
than  to  remark,  that  a  doctrine  which  would  go  far  to  re- 
concile the  cases,  and  which  may  have  a  practical  value 
though  not  much  logical  precision,  would  be  this  :  legisla- 
tion on  the  remedies  of  prior  contracts  w^ould  be  constitu- 
tional, provided  its  modification  of  these  remedies  still  leaves 
substantial  and  efficient  means  of  enforcing  them.  (/) 

•It  seems  to  be  settled  that  a  State  insolvent  law  operates 
in  favor  of  its  citizens  who  are  insolvent  —  whether  as  to 

{d)  Sturfresu.  Crowninshielcl,4  Wheat.  314;  Smith  v.  Parsons,  1  Ham.  (Ohio,) 

122;  McMillan   v.   McNiel,  4  Id.  209;  2.36. 

Ogden  V.  Saunders,  12  Id.  213;  Boyle  (e)  See  cases  cited  iwte,  note  {z.) 

V.    Zacharie,    6  Peters,   348;   Planters  (/)  Sturgisr.  Crowninshield,  4  Wheat 

Bank  u.  Sharp,  6  IIow.  328 ;  Mather  I'.  122;    James    v.    Stall,    9    Barb.   482 

Bush,  16  Johns.  233;  Hicks  v.  Hotch-  Bruce  v.  Schuyler,  4    Gilm.    221,   227 

kiss,    7  Johns.  Ch.  297;  Blanchard   v.  Stocking  y.  Hunt,  3  Denio,  274  ;  How 

Russell,    13  Mass.  1  ;  Kimberly  v.  Ely,  ard  v.  Kentucky  &  Louisville  M.  Ins 

6  Pick.  440 ;  Norton  v.  Cook,  9  Conn.  Co.  13  B.  Munroe,  285. 


530  TUB   LAW   OF   CONTRACTS.  [PART  n. 

remedy  or  as  to  obligation  —  only  as  to  other  citizens  of  the 
same  State ;  (g-)  and  not  against  citizens  of  other  States, 
who  have  not  assented  to  the  relief  or  discharge  of  the  debtor, 
expressly,  or  by  some  equivalent  act,  as  becoming  a  party  to 
the  process  against  him  under  the  law,  taking  a  dividend, 
and  the  like,  (h)  Such  has  been  the  ruling  of  the  courts  of 
the  United  States.  In  the  State  Courts  this  has  not  always 
been  adopted,  and  these  courts  have  therefore  refused  to  aid  a 
citizen  of  another  State,  in  enforcing  a  debt  against  a  citizen 
of  their  own  State,  where  the  debt  was  discharged  by  their 
insolvent  law.  And  in  such  case  the  creditor  was  obliged 
to  resort  to  the  courts  of  the  United  States,  within  that 
State,  (i) 


SECTION  VI. 

OF  THE  MEANING  OF  THE  WORD    "  OBLIGATION  "    IN   THIS  CLAUSE. 

A  question,  not  the  same  with  those  we  have  considered, 
yet  closely  akin  to  them,  has  been  much  discussed.  It  is, 
what  does  the  term  "  obligation  "  in  this  clause,  include  ? 
The  importance  of  the  question  rests  mainly  on  the  distinction 
which  has  been  drawn  between  the  laws  of  a  State  which 
were  in  force  at  the  time  the  contract  was  made,  and  those 

{(j)  McMillan   i\   McNeil,  4  Wheat,  was    held   that   a   discharge  under  the 

209;  Ogden  v.  Saunders,  12  Id.  213;  English   bankrupt   law,  of  a  merchant 

Cook    I'.   MofTat,    ^   How.    295 ;    Van  residing  in  England,  from  a  debt  to  a 

Ileinisdyk  v.  Kane,  1  Gall.  371 ;  Ilinkley  citizen  of  Massachusetts,  contracted  and 

V.   Mareau,   3    Mason,    88  ;    Baker   v.  payable   in    England,  is  a  bar  to  a  sub- 

Wheaton,    5    Mass.    509;    Watson    i\  sequent  action  on  the  debt  in  that  State, 

Bourne,   10   Id.  S."]?;  Bradford  v.  Far-  wiiellicr  the  debtor  proved  his  debt  un- 

rand,  1.3  Id.  18  ;  Walsh  v.  Farrand,  Id.  der    the  English  commission  of  bank- 

19;    Hicks  v.  Hotchkiss,  7   Johns.  Ch.  ruptcy  or  not. 

297;  Norton  t-.-Cook,  9  Conn.  314.  But         ,,,^,  „     .,        ^  ,       ' 

a  discharge   bv  the  bankrupt  law  of  a         (^0  Clay  v.  Smith.  3  Peters,  41.    But 

State  within  'which    the   contract   was  ^^c   as  to  assent,  Kiinberly   '••   Ely,   6 

made,  and   of  wiiich  the  debtor  was  a  ^  '^■'^-  ^-^^  i  Agncw  v.  1  ratt,  15  Id.  417. 
citizen   when  it   was   made,  is  a  good         (i)  Babcock  v.  Weston,  1    Gall.  1C8. 

bar  to   an   action    brought   in    another  On  the  relation  of  the  insolvent  laws  of 

State.  Blanchard  I',  llusscll,  13  Mass.  1.  one  State  to  the  rights  or  remedies  of 

So  also  where  the  discharge  was  granted  citizens  of  other  States,  see  Braynard  v. 

in  a  State  where  the  contract  was  made  Marshall,  8  Pick.  194  ;  Nort<m  v.  Cook, 

between  the  citizens  of  that  State,  and  9  Conn.  Rep.    314;  Pugh  r.  Bussell,  2 

the  action  was  brought  in  another  State.  Blackf.    394  ;  Woodliull    v.  Wagner,  1 

Pugh  I'.   Bisseli,   2   Blackf.  3GG.      See  JJaldwin,    C.    C.    K.    290 ;    Browne   J-. 

May   V.    Breed,   7    Cush.  15;  where  it  Stackpolc,  9  N.  11.478. 


CH.  VII.]        THE  CONSTITUTION  OF  THE  UNITED  STATES. 


537 


which  are  subsequently  enacted.  The  latter  may  certainly 
impair  this  "  obligation,"  while  the  former,  as  it  is  con- 
tended, certainly  cannot,  because  all  existing  laws  enter  into 
contracts  made  under  them,  and  define  and  determine  that 
contract.  Upon  this  principle,  the  insolvent  laws  of  a  State, 
which  on  certain  terms  discharged  all  remedies  on  contracts 
made  after  its  passage,  between  the  citizens  of  the  State, 
have  been  held  to  be  constitutional.  Those  who  hold  to  the 
distinction  maintain  that  the  "obligation"  of  the  contract 
consists  in  the  municipal  law  existing  at  the  time  the  con- 
tract is  made,  [j )  or  perhaps  in  a  combination  of  the 
moral,  natural,  and  municipal  law,  [k)  while  those  who  deny 
the  distinction,  insist  that  the  "  obligation  "  consists  in  the 
universal  law  of  contracts,  which  is  unaffected  by  municipal 


(j)  "A  contract  is  an  agreement  in 
which  a  party  undertakes  to  do  or  not 
to  do  a  particular  thing.  The  Law  binds 
him  to  perform  his  undertaking,  and 
this  is,  of  course,  the  obligation  of  Ins 
contract."  Sturges  v.  Crowninshield,  4 
Wheat.  1 22.  Marshall,  C.  J.  :  "  What  is 
it,  then,  which  constitutes  the  obligation 
of  a  contract  ?  The  answer  is  given  by 
the  chief  justice,  in  the  case  of  Sturges  v. 
Crowninshield.  to  which  I  readily  assent 
now,  as  I  did  then  ;  it  is  the  law  whicli 
binds  the  parties  to  perform  their  agree- 
ment. The  law,  then,  which  has  this  bind- 
ing obligation,  must  govern  and  control 
the  contract,  in  every  shape  in  which  it 
is  intended  to  bear  upon  it,  whether  it 
affects  its  validity,  construction,  or  dis- 
charge. It  is,  then,  the  municipal  law 
of  the  State,  whether  that  be  written  or 
unwritten,  which  is  emphatically  the  law 
of  the  contract  made  within  the  State, 
and  must  govern  it  throughout,  wherever 
its  performance  is  sought  to  be  en- 
forced." Ogden  V.  Saunders,  12  Wheat. 
2.57,  259,  per  Washington,  J.  Thompson, 
J.,  p.  302,  citing  the  extract  from  Sturges 
V.  Crowninshield,  said:  "That  is,  as  I 
understand  it,  the  law  of  the  contract  forms 
its  obligation ;  and  if  so,  the  contract  is 
fulfilled  and  its  obligation  discharged 
by  complying  with  wliatevcr  tlie  existing 
law  required  in  relation  to  such  contract; 
and  it  would  seem  to  me  to  follow,  that 
if  the  law,  looking  to  the  contingency 
of  the  debtor's  becoming  unable  to  pay 
the  whole  debt,  should  provide  for  his 


discharge  on  payment  of  a  part,  this 
would  enter  into  the  law  of  the  contract, 
and  the  obligation  to  pay  would,  of 
course,  be  subject  to  such  contingency." 
And  per  Trimble,  J.,  p.  318  :  "From 
these  authorities,  and  many  more  might 
be  cited,  it  may  be  fairly  concluded, 
that  the  obligation  of  the  contract  con- 
sists in  the  power  and  efficacy  of  the 
law  which  applies  to  and  enforces  per- 
formance of  the  contracts,  or  the  pay- 
ment of  an  equivalent  for  non-perform- 
ance. The  obligation  does  not  inhere 
and  subsist  in  the  contract  itself,  propria 
vigore,  but  in  the  law  applicable  to  the 
contract.  This  is  the  sense,  I  think, 
in  which  the  constitution  uses  the  term 
obligation." 

(/!)  "Eight  and  obligation  are  consid- 
ered by  all  ethical  writers  as  correlative 
terms.  Whatever  I  by  my  contract  give 
another  a  right  to  require  of  me,  I  by 
that  act  lay  myself  under  an  obligation 
to  bestow.  The  obligation  of  every  con- 
tract will  then  consist  of  that  right  or 
power  over  my  will  or  actions,  which  I, 
by  my  contract,  confer  on  anothert  And 
that  right  and  power  will  be  found  to  be 
measured,  neither  by  moral  law  alone, 
nor  u»iversal  law  alone,  nor  by  the  laws 
of  society  alone,  but  by  a  combination 
of  the  three, — an  operation  in  which 
the  moral  law  is  explained  and  applied 
by  the  law  of  nature,  and  both  modified 
and  adapted  to  the  exigencies  of  society 
by  positive  law."  12  Wheat.  281,  per 
Johnson,  J. 


538  THE  LAW  OF  CONTRACTS.  [PART  II. 

law,  and  is  not  itself  conferred  or  created  by  positive  law,  but 
derived  from  the  agreement  of  the  parties.  (/) 

The  question  has  also  been  raised,  whether  this  clause  of 
the  constitution  limits  or  affects  the  power  of  the  State  to 
enact  general  police  regulations  for  the  preservation  of  the 
public  health  and  morals.  Thus,  if  a  legislature  grant  a 
charter  to  a  corporation  to  hold  land  for  the  purpose  of  bury- 
ing the  dead  within  the  limits  of  a  city;  can  a  subsequent 
legislature,  for  the  purpose  of  preserving  the  health  of  the  city, 
prohibit  all  persons  from  burying  the  dead  within  the  limits  of 
the  city,  and  by  this  prohibition  render  their  former  grant  use- 
less and  inoperative  ?  Or  can  a  legislature,  having  authorized 
an  individual  or  a  company  to  raise  a  certain  sum  of  money 
by  lotteries,  or  after  having  licensed  individuals  to  sell  spirit- 
uous liquors  for  a  certain  period,  afterwards,  for  the  purpose 
of  preserving  the  public  morals,  recall  such  authority  or  license, 
by  a  general  law,  prohibiting  lotteries,  or  the  sale  of  spirituous 
liquors?  And  if  this  can  be  where  the  grant  or  license  was 
gratuitous,  can  it  also  be  done  if  a  certain  price  or  premium 
was  paid  for  it?  While  the  authorities  are  not  uniform,  we 
consider  the  prevailing  adjudication  of  this  country  to  favor 
the  rule,  that  such  general  laws  are  not,  in  either  case,  with- 
in the  purview  or  prohibition  of  the  constitution,  (m)  If 
nothing  is  paid  for  the  license  or  the  authority,  the  authorities 
are  quite  uniform  that  it  maybe  taken  away  by  such  general 
law.  But  where  a  fee  or  premium  has  been  paid,  there  are 
cases  which  hold  this  to  constitute  a  contract  that  is  binding 
on  both  parties,  (n) 

It  is  certain  that  a  State  may  pass  an  act  limiting  the  time 
within  which  existing  rights  of  action  shall  be  barred.     But 

(/)*  Contracts  have  consequently  an  Plialen  i'.  Virginia,  8  How.  163  ;  Him  r. 

intrinsic  obligation.     .    .     .     No  State  The  State  of  Ohio,  1  Ohio  State  R.  15  ; 

shall  '  pass  any  law  impairing  the  ohli-  Baker  r.  Boston,  12  I'ick.  194  ;  Vandcr- 

gation  of  contracts.'    These  word»  seem  hilt  z'.  Adams,  7  Cowen,  349;  Coates  i'. 

to  us  to  imi)ort  that  the  obligation  is  in-  The  Mayor  &c.  of  New  York,  Id.  58.5  ; 

trinsic;  that  it  is  created   I)y  the  con-  see  21  Am.  Jurist.  279,  280. 

tract  itself,  not  that  it  is  dependent  on  ()t)  State  of  Missouri  v.  Hawthorne, 

the  laws  made  to  enforce  it."     Ogden  9  Missouri,  389.     Sec  Freleigh  ?;.  The 

V.   Saunders,   12    Wheat.  350,  353.  per  State,    8   Id.  607;    State   r."  Sterling, 

Marshall,  C- J.  Id.  697;    State  v.   Thalen,  3  llarring- 

(w)  I'halcn's  case,  1  Rob.  (Va.)  713  ;  ton,  441  ;  4  Id.  427. 


CH.  Vir.]         THE  CONSTITUTION  OF  TOE  UNITED  STATES.  539 

a  reasonable  time  must  be  given   after  its  passage,  within 
which  they  may  be  enforced,  (o) 

Cases  have  also  arisen  under  the  clause  of  the  constitution 
of  the  United  States,  which  relates  to  the  regulation  of  com- 
merce by  congress.  In  these  cases  the  supreme  court  ap- 
pear to  recognize  the  validity  of  police  regulations  or  statutes 
which  indirectly  affect  the  exercise  of  powers,  which,  by  the 
constitution,  belong  exclusively  to  congress,  (p)  We  do  not 
refer  to  these  questions,  however,  particularly,  as  they  do  not 
seem  to  come  within  the  scope  of  the  Law  of  Contracts. 

(o)    Sturges    v.    Crowninshield,     4  14  Maine,  344;  Griffin  v.  McKenzie,  7 

Wheat.  122,  207.    MirshaU,  C.  J.  :    "If  Geo.  1G3  ;   West  Feliciana  K.  R.  Co.  v. 

in  a  State   where    six    years   may   be  Stockett,    13    S.    &   M.   395;  Butler  v. 

pleaded  in  bar  to  an  action  of  assumpsit,  Palmer,!   Hill,  328;  Pearce  v.  Patton, 

a  law  should  pass  declaring   that  con-  7  B.  Munr.  162;  James  t'.  Stull,  9  Barb, 

tracts  already  in  existence   not   barred  489  ;  sec  Story,  Comm.  Const.  §  1379. 

by  the  statute  should  be  construed  to  be  (/))  Smith  v.  Turner,  7  Howard,  283, 

within    it,   there   could   be  little  doubt  as    to    the    state   taxes  on  passengers, 

of  its  unconstitutionality."     Jackson  v.  Thurlow  v.   Massachusetts,  5   Howard, 

Lamphire,  3  Peters,  290;   Bronson  v.  504.  as  to  the  laws  of  Massachusetts,  of 

McKenzie,  I   How.  311;  McCracken  v.  Rhode  Island,  and  of  New  Hampshire, 

Haywood,  2  Id.   608;    Society,  &c.  v.  prohibiting  the  sale  of  spirituous  liquors. 

Wheeler,  2  Gall.  141  ;  Call  v.'  Hagger,  New  York  r.  Mien,  11  Peters,  102,  as  to 

8   Mass.  430 ;    Blackford  v.   Peltier,  1  statute  of  New  York  prescribing  sundry 

Blackf.  36;  Proprietors  of  Ken.  Purchase  regulations  as  to  passengers  brought  to 

V.  Laboree,  2  Greenl.  293 ;  Beal  v.  Nason,  that  State. 


INDEX. 


ACCEPTANCE, 

required  by  the  Statute  of  Frauds,  324,  325. 

rights  of  buyer,  when  after  acceptance  the  article  proves  deficient 
in  quantity  or  quality,  325-  327. 
ACCESSION, 

of  goods,  474,  475. 
ACCORD  AND  SATISFACTION, 
definition  of,  193. 

must  be  complete  and  perfect,  193. 

■when  the  acceptance  of  a  new  promise,  equivalent  to,  194. 
revival  of  the  original  cause  of  action,  when  the  new  executory 

promise  is  broken,  195,  196. 
acceptance  of  negotiable  paper  as  a  new  promise,  effect  of,  196. 
compromises  of  mutual  claims  or  suits,  130,  197. 
•when  effective  only  as  a  suspension  of  the  original  cause  of  action, 

196,  197. 
acceptance,  as  satisfaction,  necessary  to,  197. 
must  be  beneficial  to  the  creditor,  and  have  a  consideration,  198, 

199.  • 

when  defeated  by  the  default  of  the  debtor,  199. 
made  by  a  third  person,  and  ratified  by  the  parties,  200. 
made  before  a  breach,  not  a  bar,  200. 
ACCOUNTS, 

between    merchants    excepted  from   the    statute   of  limitations, 
366-370. 
ACKNOWLEDGMENT, 

what  sufficient  to  revive  a  debt  barred  by  the  statute  of  limitations, 
343,  n.  (y),  345,  n.  (c),  347  -  353. 
ACTION, 

when  barred, 

(See  Limitations,  Statute  of.) 
ADMINISTRATORS,' 

(See  Executors  akd  Administrators.) 
VOL.  II.  46 


/ 


542  INDEX. 

ADMISSION, 

of  debts  barred  by  the  statute  of  limitations. 
(See  Acknowledgment.) 
ACT  OF  GOD, 

action  on  the  replevin  bond  defeated  by  the  destruction  of  the  pro- 
perty by,  478. 
ADVANCES, 

factors  right  to  sell  to  repay,  466. 
AGENTS, 

remission  of  money  by,  49,  n.  (z). 

payment  to,  payment  to  the  principal,  126,  127. 

tender  to,  and  by,  151,  160. 

set-off,  by  and  against,  248-251. 

fraud  of,  responsibility  of  the  principal  for,  277. 

signature  by,  under  the  statute  of  frauds,  291,  292. 

carrier,  when  an  agent,  by  the  statute  of  frauds,  327-  330. 

■written  acknowledgment  by,  whether  sufficient  to  revive  a  debt 

barred  by  the  statute  of  limitations,  357-359. 
of  the  creditor,  promise  to,  revives  the  debt,  365. 
when  interest  allowed  in  an  action  by  the  principal  against,  382. 
damages  in  an  action  against,  465-468. 
in  an  action  by,  468. 
nominal,  when  recoverable  against. 
(See  Attorney,  Auctioneer.) 
ALTERATION, 

effect  of,  when  made  by  a  stranger,  223. 

when  made  by  a  party,  223  -  227. 
on  deeds,  bills  of  exchange,  and  awards,  223,  n.  (q). 
whether  material,  a  (pestlon  of  law,  226. 
by  adding,  or  tearing  off  a  seal,  227,  228. 
by  filling  blanks,  229. 
when  obvious,  whether  presumed  to  have  been  made  before  or  after 

execution,  228,  and  n.  (a), 
in  a  deed,  after  the  vesting  of  the  estate  —  the  estate  not  divested 
by,  230,  231. 
ALTERNATIVE, 

contract  on  the,  how  performed,  163,  169,  170. 
ANNUITIES, 

purchase  of,  not  usurious,  388,  n.  (c),  416,  417. 
APPORTIONMENT, 

of  price,  effect  of,  on  entirety  of  a  contract,  29  -  31. 
of  contracts,  defined,  32. 

compensation  for  service  under  a  contract  not  apportionable,  de- 
pendent on  its  entire  perfoi-mance,  32,  33,  172. 
when  contracts  are  apportionable,  33,  170-173. 
remedy  of  a  party  for  j)art-pcrformancc  of  a  contract,  not  appor- 
tionable wlien  the  failure  is  not  his  fault,  34,  35,  and  n.  {d). 


INDEX.  643 

APPORTIONMENT,  continued. 

when  compensation  for  part  performance  may  be  set-off,  246. 
APPROPRIATION, 

of  payments,  140-147,  356. 

(See  Payment.) 


ARBITRAMENT, 

ARBITRATION, 

ARBITRATOR, 


(See  Award.) 
(See  Aavard.) 
(See  Award.) 


ARREST, 

right  of,  whether  governed  by  the  lex  loci  contractus,  101,  102. 

laws  exempting  from,  when  constitutional,  533. 
ASSIGNEES, 

joint,  payment  to  one  of,  128. 
ASSIGNMENT, 

of  a  debt,  effect  of,  137,  138. 
ATTORNEY, 

payment  to,  126. 

tender  to,  151,  n.  (r). 

lien  of,  on  an  award,  218. 

claim  of,  for  professional  services,  when  the  statute  of  limitations 
begins  to  run  on,  373. 

fees  of,  when  recoverable  as  damages,  441,  442,  487  -  489. 

damages  in  an  action  against,  465  -  468. 
AUCTIONEER, 

payment  to,  127. 

duty  of,  as  stakeholder,  139. 

sales  by,  whether  within  the  statute  of  frauds,  292,  n.  (r). 

an  agent  for  vendor  and  vendee,  292,  and  n.  (r). 
AWARD, 

analogy  between,  and  accord  and  satisfaction,  200. 
and  a  judgment,  213. 

must  conform  to  the  submission,  201. 

cannot  affect  strangers,  2Q1. 

matters  to  be  embraced  in,  202  -  204. 

must  be  certain,  204-206. 
possible,  206. 
lawful,  207. 
reasonable,  207. 
final  and  conclusive,  208,  209. 

when,  although  defective  in  particulars,  may  be  sustained,  210,  211. 

construction  of,  favorable,  210,  211. 

of  costs,  effect  and  construction  of,  206,n.  (i),  (d),  208,  n.  {q),  211. 

of  releases,  power  of  arbitrators  to  order,  and  meaning  of,  208,  n. 
(p),  211. 


544  INDEX. 

AWARD,  continued. 

form  and  publication  of,  212. 

defence  of,  proof  of  submission  necessary  to,  213. 

when  set  aside,  for  fraud  or  corruption  of  arbitrators,  213. 

for  mistake  of  arbitrators,  in  law  or  fact,  213  -  217. 
for  irregular  proceedings  as  to  notice  to  parties, 
217. 

examination  of  wit- 
nesses, 218. 
choice  of    umpire^ 
219. 
alteration  of,  223,  n.  (q). 
AWAY-GOING  CROPS, 

allowed  to  tenants,  49,  n.  (;:),  59,  n.  (q). 


B. 

BAILMENT, 

(See  Carrier  Common  ;  Pledge.) 
BANKS, 

effect  of  usage  on  the  business  of,  49,  n.  (r). 

transactions  between,  not  within  the  exception  of  the  statute   of 

limitations  in  favor  of  accounts  between  merchants,  368,  n.  (a), 
sales  of  notes  of,  when  usurious,  386,  n.  (w). 

when  usury  committed  by,  in  the  calculation  of  interest,  406,  407. 
in  the  discount  of  notes  and  bills,  406 
-410. 
charters  of,  when  protected  by  the  U.  S.  constitution,  514. 
BANK-BILLS, 

payment  in,  133,  134. 

when  forged  or  of  a  broken  bank,  134,  135. 
when  forged,  to  the  bank  itself,  134,  n.  (/)  ((/). 
tender  of,  not  valid,  when  objected  to,  133,  157. 
BANK  CHECKS, 

payment  in,  135. 
BANKRUPTCY, 

whether  a  plea  in  real  actions,  495. 

laws  relative  to,  how  effected  by  the  constitution  of  the  United 
States,  530-536. 

(See  Insolvent.) 
BAR, 

(^ee  Judgments.) 
BEYOND  SEAS, 

meaning  of  the  term,  378. 
BILLS, 

of  banks, 

(See  Bank-Bills.) 


INDEX.  545 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES, 

payable  to  a  fictitious   payee,  not  construed  as   bills   payable   to 

bearer,  7,  n.  {(]) 
right  of  holder  in  certain  cases  to  consider  promissory  notes  as 

bills,  20. 
Tvhcn   a  note  is   invalid   because   of   a  repugnant   indorsement, 

2G,  n.  (0- 
how  affected  by  the  lex  loci,  87,  95-99. 
(See  Place,  Law  of.) 
payment  in,  131,  13G,  196,  198. 
accord  and  satisfaction  of,  196. 

suit  on,  when  may  be  brought  for  instalments,  132,  147. 
interest  on,  how  calculated,  146. 
alteration  of,  223  -  228. 

sales  of,  within  the  statute  of  frauds,  331,  n.  (w). 
part  payment  in,  debts  barred  by  the  st*itute  of  limitations  revived 

by,  353-356. 
when  the  statute  of  limitations  begins  to  run  on,  370  -372. 
when  usurious. 

(See  Usury,  Interest  and  Usury.) 
damages  in,  action  of  trover  for,  471. 

in  sales,  for  breach  of  contract  to  give,  485. 
payable  in  goods,  damages  in  action  on,  490-492. 
BONA  FIDE, 

holder  of  real  estate,  claim  for  improvements,  494-498. 
BOND, 

condition  in,  to  be  construed  in  favor  of  obligor,  22,  n.  (v). 
what  words  constitute  a,  24. 
when  void  for  repugnancy,  26,  n.  (/). 
alteration  of,  22G,  n.  (r)  and  (ft). 

amount  due  on,  but  not  the  penalty,  pleadable  as  set  off,  242. 
BONUS, 

on  loans,  when  in  conflict  with  the  usury  laws,  391,  426. 
BOTTOMRY, 

loans  on,  not  usurious,  414-416. 
BROKER, 

rights  of,  against  his  principal  who  has  not  furnished  funds  to  meet 
a  purchase  when  the  broker  has  paid  the   expenses  of  a  resale, 
^  49,  n.  {z). 

"        set  off  against,  when  allowed,  249. 

an  agent  for  both  parties  under  the  statute  of  frauds,  292. 
memorandum   required  by  the  statute  of  frauds,  what  sufficient, 

292,  n.  (s). 
charge  of,  for  services  in  discount  of  notes  and  bills,  not  usurious, 
410. 

46* 


546  INDEX. 


c. 


CAPACITY  OF  PARTIES, 

(See  Pakties.) 
CARRIER  COMMON, 

notice  by,  to  be  construed  ajjjainst  himself,  19. 

delivery  by,  how  determined  by  usage,  49,  n.  (z). 

delivery  to,  when  suf^cient  to  satisfy  the  requirements  of  the  stat- 
ute of  frauds,  327  -  330. 

damages  in  an  action  against,  4G8-470. 

causa  proxhna  et  causa  remola,  455. 
CHAMPERTY, 

contracts  of,  void,  2G3. 

what  amounts  to,  2G3. 
CHARTERS, 

of  corporations,  are  contracts,  513  -515. 

how  construed,  515-517. 

reservations  in,  how  construed,  513 -515. 
J  when  may  be  taken  for  public  purposes,  517  -  527. 
CHECKS, 

of  a  bank,  payment  in,  135. 
CHOSES  IN  ACTION, 

sales  of,  when  usurious,  421  -427. 

{See  Bills  of  Exchange  and  Promissory  Notes.) 
COMPOUND  INTEREST, 

not  usurious,  427,  428. 

when  agreement  for,  is  valid,  428-430. 

annual  rests  in  merchants'  accounts  allowed,  430,  n.  (x). 
COMPROMISE, 

of  a  debt,  binding,  130-197. 
CONCEALMENTS, 

{See  Fkaud,  273,  274.) 
CONDITION, 

words  of,  construed  as  words  of  covenant,  23. 

grants  on,  avoided  by  a  breach  thereof,  36,  37. 
not  favored  by  the  law,  38. 

when  a  provision  in  a  contract  amounts  to,  39,  40. 

when  covenants  in  a  contract  are  a  condition  precedent  to  each 
other,  40,  41,  and  n.  (/),  187-189.  # 

tender  on,  not  valid,  155. 
CONDITIONAL  CONTRACTS, 

[See  Condition.) 
CONFUSION, 

of  goods,  effect  of,  4  74,  4  75. 
,    CONSEQUENTIAL  INJURY, 

when  damages  recoverable  for,  454-463,  487-498. 


INDEX.  547 

CONSIDERATION, 

of  a  contract,  when  required  to  be  in  writing,  295  -  29  7. 

of  a  contract  within  the  statute  of  frauds,  when  recoverable,  315- 

318,  319. 
with  interest,  when  the  measure  of  damages  in  breach  of  covenants 

in  sales  of  real  estate,  499  -  502. 
CONSTITUTION  OF  THE  UNITED  STATES, 
operation  of,  on  contracts,  509-539. 
What  are  contracts  within  the  clause   respecting  the  obligation  of 

them,  509-515. 
a  grant  is  within  the  clause,  509. 
contracts  between  two  States,  within,  530. 
between  a  State  and  an  individual,  530,  n.  (w). 
what  interference  violates  the  obligation,  509,  510. 
municipal  corporation,  powers  and  franchises  of,  511-513. 
Salaries  and  tenures  of  oflice,  not  within,  512. 
grants  to  corporations  and  charters  thereof  within,  509,  n.  (t;),  513- 

515. 
reservations  in  charters,  513-515. 
What  rights  are  implied  hy  a  grant,  515-517. 
grants,  how  construed,  515,  516. 
Of  an  express  grant  of  exclusive  privileges,  517-527. 
whether  exclusive  privileges  are  revocable,  517,  518,  520. 
tenure  by  which  private  property  is  held,  519. 
eminent  domain,  power  of  the  State  over,  in  grants  for  building 

bridges,  521. 
an  exclusive  right  to  build  a  bridge  may  be  taken  for  public  pur- 
poses, 522. 
when  coupled  with  a  stipulation  not  to  authorize  another  bridge, 

522,  523. 
public  purposes,  and  provision  for  compensation  necessary  to  the 

exercise  of  the  right  of  eminent  domain,  524. 
taxing  power,  whether  alienable  by  the  State,  518,  525,  526. 

abandonment  of,  not  to  be  presumed,  527. 
Of  the  relation  of  the  clause  to  marriage  and  divorce,  527-  530. 
whether  marriage  is  within  the  clause,  527,  528,  529. 
whether  a  divorce  can  be  decreed  for  any  cause  not  a  ground  for 

divorce  when  the  marriage  was  contracted,  528. 
Of  the  relation  of  the  clause  to  bankruptcy  and  insolvency,  530  -  536. 
bankrupt  and  insolvent  laws  of  a  State  within,  530. 
power  of  congress  to  pass  a  bankrupt  law  not  exclusive,  531. 
an  act  abolishing  imprisonment  for  debts  previously  contracted,  not 

prohibited,  532,.  533,  535. 
when  laws  exempting  property  from  attachment,  or  execution,  or 

staying  process,  are  constitutional,  233  -  235. 
insolvent  laws  of  a  State,  operative  only  in  favor  of  the  citizens 

thereof,  535,  536,537. 


548  INDEX. 

CONSTITUTION  OF  THE  UNITED  STATES,  continued. 

Of  the  meaning  nf  the  u-ord  "  obligation  "  in  the  clause,  536-539. 
whether  the  "  obligation  "  consists  in  the  municipal  law  existing 
when  the  contract  was  made,  or  in  the  universal  law  of  contracts, 
537. 
police  regulations  of  a  State  interfering  with  contracts,  when  con- 
•         stitutional,  538,  539. 

statutes  of  limitations  by  a  State,  when  constitutional,  538. 
divesting  of  vested  rights  not  prohibited,  534. 
CONSTRUCTION  OF  CONTRACTS, 

General  purpose  and  principles  of  construction,  3-6. 

a  question  of  law,  3-5. 

how  distinguished  from  interpretation,  3,  n.  {a). 

of  a  written  instrument,  4,  n.  (b). 

of  libels,  4,  n.  (h). 

of  technical  terms,  5,  8. 

of  words  obscurely  written  or  half  erased,  5. 

at  law  and  in  equity,  in  deeds  and  simple  contracts,  the  same,  6. 

Intention,  effect  of,  6-11. 

subject  to  the  rules  of  law  and  of  language,  6-11. 

in  a  deed  how  operative,  6,  n.  (/)  7,  n.  (^g). 

when  imparting  to  specif  c  the  sense  of  generic  terms,  8. 

mistakes  in  choice  of  words,  but  not  in  their  use,  remedied 

in  a  court  of  equity,  8,  0. 
how  controlled  ]»y  the  rule  which  construes,  so  as  to  effec- 
tuate a  lawful  intent,  9,  10. 
of  one  party  as  believed  by  the  other  not  to  prevail  against 

the  fixed  meaning  of  words,  9,  10,  11. 
how  effected,  when  not  expressed  in  the  contract  through 
fraud  of  one  party,  10. 
General  rules  of  construction,  11-29. 
how  governed  by  the  subject  matter,  or  the  situation  and  purpose 

of  the  parties,  11. 
remedy  of  parties,  where  their  purpose  and  language  conflict,  12. 
construction  which  makes  the  contract  legal,  preferred,  9,  12,  16. 
a  comprehensive,  general,  and  ordinary  sense  presumed,  9,  12,  16. 
of  policies  of  insurance,  wills,  leases,  deeds,  and  releases,  12  u.  (q), 

13,  n.  (r),  14,  15,  n.  (x). 
of  each  part,  collected  from  the  whole  of  the  instrument,  13-15. 
of  general  words  restricted  by  particular  recitals,  13,  n.  (r),  14,  15. 
may  be  gathered  from  separate  instruments,  14,  15. 
construction  which  supports  a  contract  preferred  to  that  which  de- 
feats it,  15-18. 
application  of  this  rule  to  deeds,  7,  n.  (g),  15,  16. 
limitation  thereof — the  rational  construction  of  language  not  to  be 

departed  from,  16-18. 
rule  of,  requiring  instruments  to  be  construed  contra  proferentem, 
18-22. 


INDEX.  549 

CONSTRUCTION  OF  CONTRACTS,  conimucJ. 
rule  of,  reason  of,  19. 

limitation  of — the  rule  availed  of,  as  a  last  resort,  19. 
effect  of,  in  case  of  deeds  poll,  indentures,  negotiable  paper, 
carriers'  notices,  notices  of  persons  claiming  a  general 
lien,  accepted  guarantees,  19-22. 
not  applicable  to  grants  of  a  sovereign  or  state,  18. 
or  to  mutual  promises,  22. 
or  to  the  injury  of  third  parties,  22. 
the    words   of  exception    or   reservation   to  be  construed 
against  the  party  for  whose  benefit  it  was  made,  20  n.  (u). 
the  condition  of  an  obligation  to  be  construed  against  the 

obligor,  22,  n.  (u).  # 

that  no  precise  words  are  necessary,  even  in  a  specialty^ 

22-25. 
when  words  of  recital  are  construed  as  an  agreement,  22, 

23. 
when  words  of  proviso  and  condition,  reservation  or  ex- 
ception  are  construed  as  words  of  covenant  or  grant, 
23,515-517. 
when  a  license  operates  as  a  grant,  23,  515-517. 
what  words  constitute  a  bond,  24.  " 

when  an  instrument  is  to  be  construed  as  a  lease,  or  an 

agreement  for  a  future  lease,  24. 
that  legal  instruments  should  be  grammatically  construed, 

25. 
not  to  prevail  when  the  sense  requires  a  different  construc- 
tion, 25. 
relative  words,  how  construed,  25. 

that  of  repugnant  clauses  in  deeds,  the  earlier,  and  in  wills, 
the  later  prevails,  26. 
when  an  inaccurate  description  of  person  or  thing  may  be  remedied 

by  construction,  26,  27. 
implications  of  law,  nature  and  scope  of,  in  the  construction  of  con- 
tracts, 27. 
expression  of  what  the  law  implies  is  of  no  effect,  27. 
the  rule  —  expressio  unius  est  exdusio  allerius,  28. 

application  of,  to  the  covenants  In  a  lease,  mortgages, 
and  charter  parties,  28. 
construction   of  instruments,  partly   written   and   partly   printed, 
when  the  written  and  printed  parts  conflict,  28,  29. 
CONSTRUCTION, 

Entirety  of  contracts^  29  -32. 

contract,  when  severable  by  a  division  into  distinct  and  separate 
items,  29. 
by  the  apportionment  of  the  price,  29,  30. 


550  INDEX. 

CONSTRUCTION,  continued. 

contract  not  severable  merely  by  the  designation  of  the  price  by 
weight  or  measure,  30,  31. 
entire  when  the  consideration  is  entire,  31,  32. 
Apportionment  of  contracts,  32-  36. 
defined,  32. 

compensation  for  service  under  a  contract  not  apportionable,  de- 
pendent on  its  entire  performance,  32,  33. 
when  contracts  are  apportionable,  33,  170-173. 
remedy  of  a  party  for  the  part  performance  of  a  contract  not  ap- 
portionable, where  the  failure   is  not  his   fault,  (See  Perfor- 
mance, Part  Performance,)  34,  35,  and  n.  {d). 
^   Of  conditional  contracts,  3G  -  40. 

grants  on  condition,  avoided  by  a  breach  thereof,  3G,  37. 

not  favored  by  the  law,  38. 

•when  a  provision  in  a  contract  is  to  be  construed  as  a  condition, 

39,40. 
0/  mutual  contracts,  40,  41. 
dependent  and  independent  covenants,  effect  of  each  respectively, 

40,  187,  188. 
whether   dependent  or  independent,  determined  by  the  intention 

of  the  parties,  41. 
rules  for  determining  whether  covenants  are  dependent  or  inde- 
pendent, 41,  n.  (I),  189. 
0/  the  presumptions  of  law,  42-  48. 
personal  representatives  are  presumed  to  be  bound  by  the  contract 

of  a  party,  43  -45. 
parties  contracting  to  perform  an  act  are  presumed  to  bind  them- 
selves jointly,  45. 
grants  carry  with    them  whatever  is  essential  to  their  use  and  en- 
joyment, 18  n.  (h),  45-4  7. 
when  a  grant  of  land  carries  with  it  a  grant  of  a  right  of  way  to 

it,  46. 
when  the  sale  of  personal  property  on  the  owner's  real  estate  gives 

the  right  to  enter  on  the  land  and  take  it,  46,  47. 
a  reasonable  time  for  doing  an  act  is  presumed  when  no  time  is 

specified,  47. 
Custom  or  usage,  effect  of,  48  -  59. 

in  the  use  of  language,  48-52. 

in  policies  of  insurance  and  bills  of  lading,  48, 

n.  (y),  49,  n.  {z),  50,  n.  (a),  59,  n.  (^7). 
in  leases,  where  the  custom  is  local,  49,  n.  (r). 
in  delivery  of  goods  by  common-carriers,  49,  n.  (z)- 
in  the  remission  of  money  by  agents,  49,  n.  (2). 
in  the  business  of  banks,  49,  n.  (c). 

of  brokers,  49,  n.  (c). 


INDEX.  661 

CONSTRUCTION,  continued. 

Custom  or  usuage,  effect  of, 

where  the  freight  of  money  is  allowed  to  master 

of  vessel  by,  49,  n.  (2). 
the  basis  of  the  common  law,  52,  53. 
must  be  established,  uniform,  and  general,  53,  54. 
ambiguities  explained  by,  55. 
afB.xes  to  a  word  a  meaning  different  from  its 
common  one,  50,  51,  55. 
difference  between  custom  and  usage,  55. 
the  existence  of  a  custom,  a  question  of  fact,  55,  56. 
knowledge  of  a  custom,  when  presumed  and  when  to  be  proved, 

56,  57. 
evidence  of  knowledge,  57. 
illegal  custom  not  admissible,  57,  59,  n.  (7). 
unreasonable  custom,  not  sanctioned  by  the  courts,  58. 
a  custom  may  be  excluded  expressly  or  by  implication,  58. 
Of  the  admissibility  of  extrinsic  evidence  in  the  interpretation  of  writ- 
ten contracts,  59-79. 
parol  evidence,  not  admissible  to  vary  or  contradict  the  terms  of  a 
written  contract,  60. 
admitted    to   determine   the    subject-matter    and 

parties,  61-63. 
when  admitted  in  the  interpretation  of  wills,  62, 

n.  (d),  65. 
an  instrument  of  settled  legal  meaning  not  open 

to,  63-65. 
admissible  to  rebut  the  presumption  against  the  ap- 
parent and  natural  effect  of  an  instrument,  65. 
aliter  if  the  presumption  is  with  the  instrument,  65. 
admitted,  when  only  a  part  is  reduced  to  writing, 
65. 
when  made  up  of  contemporaneous  writ- 
ings, 66. 
to  contradict  recitals,  66,  76. 
to  vary  or  contradict  the  date  or  consi- 
deration, 66,  76. 
to  prove   incapacity   of   parties,   fraud, 
duress,  illegality,  discharge,  change  of 
time,  place,  waiver  of  damages,  substi- 
tution of  the  contract  or  consideration, 
66,  67. 
to  vary  a  receipt,  67. 
to  explain  technical  terms,  67,  68. 
where  the  question  is  as  to  the  rights  of 
third  parties,  68,  69. 
written  evidence  admissible,  69. 


552  INDEX. 

CONSTRUCTION,  continued. 

parole  evidence,  admissible  to  explain  a  latent  ambiguity,  69-72. 
distinction  between  a  patent  and  a  latent  ambi- 
guity, 69-72. 
'  reason  and  scope  of  the  rule,  72  -  75. 
■when  admitted  to  show  the  knowledge,  or  igno- 
rance, or  belief  of  a  party,  74,  n.  (r). 
or  surrounding  circumstances,  74. 
to  explain  uncertainties,  75,  76. 
summary  of  rules  relative  to  the  admissibility  of, 
76-79. 
of  a  contract,  how  alTected  by  the  lex  loci,  83,  94-97. 
of  the  covenant  to  repair  in  leases,  507. 
Of  certain  terms  in  a  contract. 

"  ffood  barley/'  and  "y?ne  barley,"  4,  n.  (6),  48,  n.  (?/). 
"horses,"  "oxen,"  and  "mares,"  7,  8,  10. 
"  men,"  "  mankind,"  and  "  women,"  8. 
"  bucks,"  and  "  does,"  8. 

"interest,"  and  "  compound  interest,"  9,  10,  17,  n.  (/). 
"sufficient  eifects,"  in  the  promise  of  an  executrix,  11,  n.  (n). 
"  sentence  of  condemnation,"  in  a  charter  party,  11,  n.  (?i). 
"counsel,"  as  given  by  a  physician  or  lawyer,  11,  n.  (n). 
"all  offices,"  12,  n.  (o). 
"barrels,"  12,  n.  (p). 
"becoming  an  insolvent,"  12,  n.  (17). 
"child,"  in  a  will,  12,  n.  (q). 
"jointly  and  severally,"  in  a  lease,  13,  n.  (?•). 
"  all  actions,  debts,"  &c.,  in  a  release  limited  to  the  particular  ac- 
tions and  debts  recited,  13,  n.  (r). 
"  full  power,  &c.,  to  convey,"  in  the  covenants  of  a  deed,  limited 

to  the  special  covenants,  13,  n.  (?•). 
"from  the  day,"  whether  day  of  date  inclusive  or  exclusive,  15,  n. 

(z),  175-177. 
"  day  of  date,"  "  in  ten  days  from  date,"  "  between  two  days," 

"  until  a  day,"  whether  inclusive  or  exclusive,  175-  178. 
"his,"  as  a  relative  Avord,  25,  n.  (t). 
"  next,"  in  point  of  time,  25,  n.  (k). 
"  in  the  month  of  October,"  48,  n.  (j/). 
"  a  whaling  voyage,"  48,  n.  (//). 
"  cotton  in  bales,"  48,  n.  {y) 
"days,"  48,  n.  (y). 
•    "  privilege,"  48,  n.  (?/). 

"across  a  country,"  48,  n.  (y).    . 

"  sea-letter,"  48,  n.  (y). 

"  furs,"  48,  n.  (y). 

"rice,"  distinguished  from  "  corn,"  48,  n.  (y). 

"of,"  when  equivalent  to  "manufactured  by,"  48,  n.  (y). 


INDEX.  5.53 

CONSTRUCTION,  continued. 

0/ certain  terms  in  a  contract,  ^"c. 

"level,"  among  miners,  48,  n.  (?/) 

"  provisions,"  wliere  equivalent  to  "  furniture,"  48,  n.  (y). 

"  roots,"  48,  n.  (?/). 

"any  port  in  the  Baltic,"  50,  n.  (a). 

"day's  work,"  51,  n.  (S). 

"  until  discharged  and  safely  landed,"  in  an  insurance  policy,  55, 
n.  (/). 

"  one  foot  high,"  in  the  measurement  of  trees,  55,  n.  (/). 

"freight,"  69,  n.  (s). 

"  port,"  69,  n.  (s). 

"  good  coarse  salt,"  168,  n.  (g). 

"  merchantable,"  168,  n.  (5). 

"  good  and  sufficient,"  warranty  deed,  168,  n.  (r),  169,  notes  (5) 
and  (/). 

"  good  title,"  168,  n.  (r),  160,  notes  (s)  and  Q). 

"  beyond  seas,"  378. 
CONTINGENCIES, 

loans,  the  paymentof  which  is  dependent  on,  not  usurious,  414-419, 

contracts  depending  on,  not  within  the  statute  of  frauds,  316,  n.  {y). 
CONTRACTS, 

Construction  and  interpretation  of^  3  -  78. 

general  purpose  and  principle  of  construction,  3-6. 

effect  of  intention,  6-11. 

general  rules  of  construction,  11-29. 

entirety  of,  29-32. 

apportionment  of,  32  -  36. 

conditional,  36  -  40. 

mutual,  40  -42. 

presumptions  of  law  in  the  construction  of,  42  -48. 

effect  of  custom  or  usage,  48-59. 

admissibility  of  extrinsic  evidence  in  the  construction  of  written, 
59-79. 

law  of  place,  79  -  126. 

preliminary  remarks,  79. 

general  principles,  80  -  84. 

capacity  of  parties,  84  -  90. 

domicile,  90  -  94. 

place  of  the  contract,  94-100. 

law  of  the  forum  in  respect  to  protest  and  remedy,  100  -  104. 

foreign  marriages,  104-113. 

foreign  divorces,  113-117. 

foreign  judgments,  117-126. 

defences,  126-284. 

payment  of  money,  126  -  147. 

the  party  to  whom  payment  shall  be  made,  126-  129. 
VOL.   II.  47 


554  INDEX. 

CONTRACTS,  continued, 
defences,  continued. 
part  payment,  129  -  132. 
payment  by  letter,  132. 

in  bank  bills,  133-135 

by  check,  135, 136. 

by  note,  136. 

by  delegation,  137.  *f 

stakeholders  and  -wagers,  138  -  140. 
appropriation  of  payments,  140-147. 
performance,  147-  187. 
tender,  148-157. 
tender  of  chattels,  157-168. 
kind  of  performance,  168  -  170. 
part  performance,  170  -  173. 
time  of  performance,  173-  180. 
notice,  180-184. 

impossibility  of  performance,  184  -  187. 

defences  resting  on  the  acts  or  omissions  of  the  plaintiff,  187  -  193. 
accord  and  satisfaction,  193  -  200. 
arbitrament  and  award,  200  -  219. 
release,  219-223. 
alteration,  223-231. 
pendency  of  another  suit,  231  -  234. 
former  judgment,  234  -  239. 
setoff,  239-252. 
illegal  contracts,  252  -  264. 
in  restraint  of  trade,  253  -  259. 

opposed  to  the  revenue  laws  of  other  countries,  259,  260. 
corrupting  legislation,  260. 
wagering,  261. 

maintenance  and  champerty,  262  -  264. 
fraud,  264  -  284. 
statute  of  frauds,  284  -  341. 
statute  of  limitations,  341-380. 
general  purpose  of,  341  -347. 
new  promise  to  revive  debts  barred  by,  347  -  353. 
part  payment,  353  -359. 
new  promises  and  part  payments  by  one  of  several  joint  debtors, 

359-366. 
accounts  between  merchants,  366  -370. 
•when  the  period  of  limitation  begins  to  run,  370-373. 
the  statute  exceptions  and  disabilities,  373  -  379. 
remedy  only,  and  not  the  debt  affected,  379. 
interest  and  usury,  380-432. 
interest,  what  is  and  when  recoverable,  380-  383. 
what  constitutes  usury,  383-386. 


INDEX.  555 

CONTRACTS,  continued, 

immateriality  of  the  form  of,  385-  392. 

the  contract  itself  must  be  tainted  with  the  usury,  392  -  394. 

substituted  securities  are  void,  394-400. 

distinction  between  the  invalidity  of  the  contract  and  the  penalty 
imposed,  400  -  405. 

accidentally  usurious,  405-408. 

discount  of  notes  and  bills,  408  -410. 

charge  of  compensation  for  service,  410-414. 

ri^  incurred,  414-419. 

in  which  a  lender  becomes  partner,  419, 420. 

sales  of  notes  and  other  choses  in  action,  421  -427. 

compound  interest,  427-430. 

legal  rates  of  interest  in  the  several  States,  430,  431. 

damages,  4.32-509. 

general  ground,  and  measure  of,  432. 

liquidated  damages,  433-441. 

circumstances  which  increase  or  lessen  damages,  441  -446. 

vindictive  or  exemplary  damages,  446  -  454. 

direct  or  remote  consequences,  454  -463. 

breach  of  a  contract  that  is  severable  into  parts,  463,464. 

legal  limit  of  damages,  465-490. 

in  an  action  against  an  attorney  or  agent,  465-468. 
a  common-carrier,  468-470. 

in  the  action  of  trover,  470-477. 

replevin,  477-479. 

where  a  vendee  sues  a  vendor,  479-483. 

where  a  vendor  sues  a  vendee,  483  -487. 

whether  expenses  may  be  included  in  damages,  487  -489. 

when  interest  is  included,  489. 

breach  of  contract  to  pay  money  or  goods,  490-492. 

nominal  damages,  492-494. 

damages  in  real  actions,  494  -  509. 

Constitution  of  the  United  States,  509  -  539. 

what  are  contracts   within  the  clause  respecting  the  obligation 
thereof,  509-515. 

what  rights  are  implied  by  a  grant,  515-517. 

an  express  grant  of  exclusive  privileges,  517-527. 

the  relation  of  this  clause  to  marriage  and  divorce,  527-530. 
bankruptcy  and  insolvency,  530. 
statutes  of  limitations,  538. 
police  regulations,  538. 

the  meaning  of  the  word  "  obligation,"  536,  537. 
CONTRACTUS  LEX  LOCI, 

(See  Place,  Law  of,) 
CONVERSION, 

of  goods,  damages  for,  470-477. 


556  INDEX. 

CONVEYANCE, 

[See  Deed.) 
C  ORP  ORATION, 

contracts  relative  to  the  stock  of,  wlien  within  the  statute  of  frauds, 

315,330-332. 
grants  to,  protected  by  the  constitution,  509,  n.  (r),  513-515. 
how  construed,  515  -  517. 
taking  of,  for  public  purposes,  617-527. 
CORRUPTION, 

of  legislation,  contracts  tending  to  corrupt,  void,  2G0. 
COUNSEL  FEES, 

when  recoverable  as  damages,  441,  442,  487-489,  502,  n.  (k). 
COURTS, 

office  of,  in  determining  the  construction  of  contracts,  4,  5. 
what  is  reasonable  time,  47,  173. 
what  alteration  vitiates  an  instrument,  226. 
what    acknowledgment  will    revive    a  debt 
barred  by  the  statute  of  limitations,  348. 
payment  of  money  into,  etFect  of,  149,  n.  Q). 
COVENANTS, 

general  words  in,  limited  by  the  recitals,  13,  n.  (r),  14,  15. 

^to  stand  seised  to  uses  when  a  deed  may  be  construed  as,  7,  n,  (g) 

15,  16. 
when  construed  against  the  covenantor,  20,  22. 
words  of  proviso  and  condition  construed  as,  23. 
dependent  and  independent,  effect  of  each,  40,  187,  188. 
whether  dependent  or  independent,  determined  by  the  intention 

of  the  parties,  41. 
rules  for  determining  whether  dependent  or  independent,  41,  n. 

(I),  189. 
accord  and  satisfaction  before  breach  of,  not  a  bar,  200. 
not  to  sue,  effect  of,  219,  220. 
alteration  of,  231. 

damages  for  breach  of,  in  the  conveyance  of  real  estate,  494  -  509. 
CREDIT, 

damages  on  breach  of  contract  when  the  goods  are  bought  on, 
480,  485. 
CREDITOR, 

rights  of,  how  affected  by  an  agreement  to  receive  part  payment 

in  full  satisfaction,  129  - 131. 
rights  of,  how  affected  by  a  suit  for  a  part  of  the  claim,  132,  147. 
acceptance  of  an  order  on  a  third  party, 
137,  138. 
in  the  appropriation  of  payments,  140-  147. 
(See  Payment,  Usury.) 
CROPS, 

contracts  relative  to,  when  within  the  statute  of  frauds,  311  -  314. 


INDEX.  557 

CROPS,  continued, 

away  going,  allowed  to  tenants,  49,  n.  (c),  59,  n.  {q). 
CY  PBES, 

doctrine  of,  belongs  to  construction,  3  n.  (a). 
CUSTOM, 

(See  Construction,  Usage.) 

D. 
DAMAGES, 

Of  the  general  ground  and  measure  of  damages^  432. 

of  liquidated  damages,  433-441. 

what  are,  433. 

penalty  of  a  bond,  liow  relieved  against,  at  law  and  in  equity,  433, 

434. 
whether  the  sum  named,  is  a  penalty  or  liquidated  damages,  not 

determined  merely  by  the  terms  used,  434. 
the  sum  named,  a  penalty,  if  payable  for  an  injury  of  a  certain  ex- 
tent and  amount,  435-438. 
if  payable  generally  on  the  breach   of 
a  contract,  made  up  of  several  stipu- 
lations  in  respect  to  some  of  which 
the  damages  are  definite  or  easily  as- 
certainable by  computation,  438,  and 

intention  of  the  parties,   effect  of,   in   discriminating  between  a 

penalty  and  lic^uidated  damages,  439,  440. 
Of  circumstances  which  increase  or  lessen  damages,  441  -  446. 
when  counsel  fees  and  expenses  of  litigation  are  chargeable  as, 

441,  442,  487. 
limited  by  the  principle  of  compensation,  441,  442. 
not  to  exceed  the  ad  damnum,  442. 

when  the  intention  of  the  defendant  is  to  be  considered,  443,  444. 
il^iere  mental  suffering  generally  disregarded,  443,  444. 
in  actions  of  slander,  whether  words  spoken  at  another  time  are 

admissible,  445. 
Of  exemplary  and  vindictive  damages,  446  -  454. 
whether  allowable,  and  on  what  principle,  446-451. 
on  what  principles  verdicts  are  set  aside  for  excessive  damages, 

451. 
when  special  damage,  to  be  recoverable,  must  be  alleged,  452,  453. 
Of  direct  or  remote  consequences,  454  -463,  487,  498. 
for  direct  consequences  only  allowed,  454. 
not  recoverable  when   resulting  from  the  plaintiff's  default,  454, 

n.  (ii),  46>1,  n.  (t«). 
causa  proxima,  how  distinguished  from  causa  rcmota,  455. 
what  consequences  are  direct,  454  -457. 
47* 


558  INDEX. 

DAMAGES,  continued. 

Of  direct  or  remote  consequences,  continued. 

■when  profits  may  be  included  in,  458  -  461. 

•wlicrc  a  party  fails  to  complete  a  contract,  4G0,  n.  (t). 

recoverable  by  a  surety,  461,  462. 

Of  the  breach  of  contract  that  is  severable  into  parts,  463,  464. 

where  the  suit  must  include  all  the  breaches  or  torts,  132, 147,  463, 

when  money  is  payable  by  instalments,  464. 

Of  the  legal  limit  to  damages,  465-490. 

importance  of  rules  for  measuring,  465. 

In  an  action  against  an  attorney  or  agent,  465-468. 

where  the  agent  sells  for  a  less  than  the  authorized  price,  465,  466. 

where  the  factor  sells  to  repay  his  advances,  4G6. 

where  the  agent  fails  to  purchase  goods  ordered  by  his  principal, 
467. 

in  an  action  by  the  agent  against  the  principal,  468. 

In  an  action  against  a  common-carrier,  468  -470. 

where  the  carrier  fails  to  carry  or  deliver  goods,  468. 

negligence  of  plaintiff,  effect  of,  in   reducing,  469,  454,   n.    (n). 
461,  n.  (m). 

value  of  the  goods,  how  measured  in  estimating,  469. 

In  the  action  of  trover,  470-477. 

value  of  property,  the  measure  of,  470. 

deduction  from,  in  case  of  lien  or  restoration,  471  • 
addition  to,   on  account  of  preliurn  affectionis, 

All. 
at  what  time  to  be  assessed,  472,  473. 

in  trover  for  a  bill  or  note,  471. 

in  the  accession  and  confusion  of  goods,  474,  475. 

whether  special  damages  are  recoverable  in  trover,  476. 

where  the  plaintiff  holds  under  a  lien,  476. 

where  the  pledgee  has  converted  the  goods,  477. 

In  the  action  of  replevin,  477-479. 

recovered  by  the  plaintiff  and  defendant  respectively,  ml. 

whose  loss,  when  the  goods  replevied  are  destroyed  by  act  of  God, 
before  judgment,  478. 

at  what  time  the  value  to  be  taken,  478. 

in  an  action  on  the  replevin  bond,  478. 

where  the  writ  is  sued  out  maliciously,  479. 

where  one  of  the  parties  has  a  qualified  right  as  by  lien,  479. 

right  of  plaintiff  after  nonsuit  to  prove  property,  479. 

Where  a  vendee  sues  a  vendor,  479  -  483. 

in   debt  on  bonds  for  the  replacement  of  stock,  472,  n.  (h)  480, 

value  of  the  goods,  the  measure  of,  479. 

when  to  be  taken,  480  -  482. 

where  the  goods  arc  bought  on  credit,  480. 


INDEX.  559 

DAMAGES,  continued. 

Where  a  vendee  sues  a  vendor,  continued. 
market  value  of  goods,  how  determined,  482. 
vendee's  right  of  rescission,  -when  and  how  exercised,  483. 
Where  a  vendor  sues  a  vendee,  483  -  487. 

rights  of  vendor,  where  the   vendee  refuses  to  complete  the  con- 
tract, 483,  484. 
•where  the  vendor  has  not  the  goods  himself,  but  has  only  contracted 

for  them,  484,  485. 
where  credit  or  a  bill  of  exchange  payable  at  a  future  day  is  to  be 

given,  485. 
for  breach  of  warranty,  457,  n.  (r),  486,  487. 
'Whether  expenses  may  he  included  in  damages,  476,  487-489,  495- 
fraud  or  wilful  wrong,  effect  of,  487,  488. 
When  interest  is  included,  380  -  382,  489. 
Of  the  breach  of  contract  to  pay  money  or  goods,  idO-Ad2. 
whether  the  sum  of  money  or  the  value  of  the  goods  is  the  measure 

of,  490-492. 
Nominal  damages,  492  -  494. 

recoverable  for  any  violation  of  right,  492,  493. 
Of  damages  in  real  actions,  494-  509. 
at  common  law,  494. 
measure  of,  495. 

trespass  for  mesne  profits,  494,  495. 
improvements,  bond  fide  holder's  claim  for,  495  -497. 
doweress,  rights  of,  where  the  dower  estate  has  been  withheld,  496, 

497. 
for  direct  and  natural  consequences,  498. 
for  breach  of  covenant  of  seizin  and  right  to  convey,  498. 
for  quiet  enjoyment,  499-502. 
measure   of,  whether  value  to  be  taken  at  the  time  of  conveyance 

or  of  eviction,  499  -  501. 
where  the  failure  extends  to  only  part  of  the  land,  502. 
for  breach  of  covenant  against  incumbrances,  502,  503. 
contract  to  sell,  503  -507. 

that  a  third  person  shall  convey,  505,  n.  (n). 
to  give  land  for  work  and  labor,  507. 
covenants  in  leases,  507. 
recoupment  of,  246. 
unliquidated,  not  subject  to  set-off,  245. 
DAYS, 

of  grace,  the  usage  of  banks,  49,  n.  {z),  58. 

notes  without,  due  on  Sunday  payable  on  Monday,  1 78. 
of  date  of  the  contract,  whether  included  in  the  computation  of 
time,  15,  n.  (x),  175-177. 
DEBTOR, 

{See  Creditor,  Payment.) 


560  INDEX. 

DEED, 

construction  of,  same  as  of  simple  contract,  6. 

restricted  to  the  sense  of  the  -words  used,  7,  n.  (cj). 
general  words  of  covenant  or  release,  limited  by  the 

recitals,  13,  n.  (?•),  14,  15. 
as  a  grant,  confirmation,  release,  so  as  to  render  it 

operative,  7,  n.  (</),  15,  16. 
when  made  contra  proferentem,  18  -  22. 
recitals  in  a  deed,  when  operative  as  an  agreement 

or  grant,  23. 
repugnant  clauses,  the  earlier  prevails,  26. 
form  of,  when  sufficient  to  comply  with  a  contract  for,  168,  169. 
tender  of,  168,  188,  n.  {g). 
alteration  of,  by  a  stranger,  223. 

,  by  a  party,  223  -  227.    . 
by  adding  or  tearing  off  the  seal,  227,  228. 
by  filling  blanks,  229. 
whether  presumed  to  have  been  made  before  or  after 

execution,  228. 
vesting  of  the  estate  not  defeated  by,  230,  231. 
fraud  in  procuring,  effect  of,  280,  n.  (?/). 
DEFENCES, 

Payment  of  money,  126-147. 

the  party  to  whom  the  payment  should  be  made,  126  -  129. 

part  payment,  129  -132. 

payment  by  letter,  132. 

in  bank  bills,  133  -135. 
by  check,  135,  136. 
by  note,  136. 
by  delegation,  137. 
stakeholders  and  wagers,  138- 140. 
appropriation  of  payments,  140  -  147. 
(See  Payment.) 
Performance,  147-187. 
tender,  148-157. 
tender  of  chattels,  157-168. 
kind  of  performance,  168  -  1 70. 
part  performance,  170  - 173. 
time  of  performance,  173  - 180. 
notice,  180-184. 

impossibility  of  performance,  184-187, 
resting  on  the  acts  or  omissions,  of  the  plaintiff,  187  -  193. 

(See   rERFOUlMANCE.) 

Accord  and  satisfaction,  193  -  200. 

(See  AccouD  and  Satisfaction.) 
Arhilrament  and  award,  200-219. 

(&e  Akuitrament  and  Awaud.) 


INDEX.  561 

DEFENCES,  continued. 

Release,  219-223. 

(^See  Release.) 
Alteration,  223-231. 

(See  Alteration.) 
Pendency  of  another  suit,  231  -  234. 

(See  Pendency  of  Another  Suit.) 
Former  judgment,  234  -  239. 

(See  Judgment.) 
Set-off,  239-259. 

(See  Set-Off.) 
Illegal  contracts,  252-264. 

in  restraint  of  trade,  253  -  259. 

opposed  to  the  revenue  laws  of  other  countries,  259, 

260. 
corrupting  legislation,  260, 
wagering,  261. 

maintenance  and  champerty,  262,  264. 
(See  Illegal  Contracts.) 
Fraud,  264  -  284. 

(See  Fraud.) 
Frauds,  statute  of,  284-341. 
(See  Frauds,  Statute  of.) 
limitations,   statute  of,  341  -380. 
(See  Limitations,  Statute  of.) 
Usury,  383-431. 

{See  Usury.) 
DELEGATION, 

payment  by,  137,  138. 
DELIVERY, 

required  by  the  statute  of  frauds,  319  -  324,  327  -  330. 
DEMAND, 

set-off  of, 

(^ee  Set- Off.) 
DISCOUNT, 

of  notes  and  bills,  when  usurious,  406  -  409. 
DIVORCES, 

in  the  State  of  the  actual  domicile  of  the  parties,  valid  everywhere, 

104,  n.  (p),  114-  117. 
validity  of,  when  granted  in  another  State  than  that  where  the 

marriage  was  contracted,  114-117. 
how  affected  by  the  constitution  of  the  United  States,  527  -  530. 
DOMICILE, 

nature  of,  90. 

evidence  of,  what  amounts  to,  90,  92,  n.  (x). 

change  of,  how  proved,  91-93. 

of  wife,  follows  the  husband's,  93,  112. 


562  INDEX. 

DOMICILE,  continued. 

of  a  child,  follows  the  parents',  94. 

of  a  ward,  follows  the  guardian's,  94. 

eflect  of,  on  capacity  of  parties,  84,  85  -90. 

of  parties,  effect  of,  on  marriage,  104  -  113. 
on  divorce,  113-117. 
DOMAIN,  EMINENT, 

right  of  the  public  to,  519  -  527. 
DOWER,  ^ 

damages  for  detention  of,  49G  -498. 

E. 

EARNEST, 

what  amounts  to,  332. 
EJECTMENT, 

damages  in,  494. 
EMINENT  DOMAIN, 

right  of  the  public  to,  519-527. 
ENJOYMENT, 

quiet,  damages  for  breach  of  covenant  for,  499-502. 
ENTIRETY  OF  CONTRACTS, 

when  severed  by  division  into  distinct  items,  29. 

by  the  apportionment  of  the  price,  29,  30. 
not  afiected  by  designation  of  the  price,  weight,  or  measure,  30, 31. 
or  by  a  division  into  items  where  the  consideration  is  entire, 
31,  32. 
for  service,  35,  and  n.  (d). 

where  contracts  are  apportionable,  32-35,  170-  173. 
(See  Apportionment,  Performance.) 
EQUITY, 

mistakes  in  a  contract,  when  corrected  by,  8,  10. 

when  cases  taken  out  of  the  statute  of  frauds  by,  on  account  of 

part  performance,  339,  340. 
relief  of  debtor  on  a  usurious  contract,  how  granted,  404. 
EVICTION, 

damages  for,  when  to  be  computed,  499-501. 
EVIDENCE, 

parole,  not  admissible,  to  vary  or  contradict  the  terms  of  a  written 
contract,  60. 
or  to  change  the  settled  legal  meaning  of 

an  instrument,  63-65. 
or  to  connect  instruments,  when  the  statute 
of  frauds  requires  the  contract  to  be  in 
writing,  298. 
admissible   to  determine   the    subject-matter  and  parties, 
CI -63. 


INDEX.  563 

EVIDENCE,  continued. 

admissible  to  rebut  the  presumption  against  the  apparent 
and  natural  effect  of  an  instrument,  65. 
when  only  a  part  is  reduced  to  writing,  65. 
to  contradict  recitals,  65. 
to  vary  or  contradict  the  date  or  consideration, 

65. 
to  show  the  incapacity  of  parties,  fraud,  duress, 
illegality,  discharge,  change  of  time  or  place, 
waiver  of  damages,  substitution  of  a  new  con- 
tract or  consideration,  66,  67. 
to  vary  a  receipt — aliter  as  to  a  release,  67,  221. 
to  explain  technical  terms,  67,  68. 
when  the  question  is  between  third  parties,  68, 

69. 
to  explain  a  latent  ambiguity,  69  -  75. 
to  show  the  knowledge,  or  ignorance,  or  belief 

of  a  party,  74,  n.  (w). 
to  explain  surrounding  circumstances,  74. 
to  explain  uncertainties,  75,  76. 
to  rebut  the  implication  of  reasonable  time  for 

performance,  173. 
to  explain  wills,  when,  62,  n.  (y),  65,  74,  76-79. 
to  show  authority  of  an  agent  under  the  statute 
of  frauds,  291,  n.  (n),  293,  294. 
foreign  judgments,  prima  facie,  119. 
examination  of  witnesses  before  arbitrators,  218. 
alteration  of  insti'uments,  when  presumed,  228. 
EXCHANGE, 

rate  of,  charge  for,  not  usurious,  413. 
EXECUTORS  AND  ADmNISTRATORS, 

bound  by  the  contracts  of  the  testator,  43  -45. 

appropriation  of  payment,  where  the  party  paying  owes  in  his  own 

right  and  as  executor,  142. 
payment  to  one  of  several,  128. 
set-off,  by  and  against,  243,  244. 

promises  of,  when  within  the  statute  of  frauds,  284,  300. 
EXEMPLARY  DAMAGES, 

(^e  Damages.) 
EXPENSES, 

of  litigation,  when  recoverable  as  damages,  441,  442,  476,  487-489, 
495,  502,  n.  (A). 
EXPERTS, 

use  of,  in  determining  the  meaning  of  technical  terms,  67,  68. 


564  INDEX. 

F. 

FACTOR, 

set-ofF against,  wlien  allowed,  248-251. 

FAILURE, 

of  performance   of  a  contract  by  one,  a  defence  by  the  other, 

187-193. 

(See  Part  Pekfoiimance.) 

FEME  COVERT, 

(See  Wife.) 

FIXTURES, 

contracts  for  the  sale  of,  wlien  witliin  the  statute  of  frauds,  814. 

FOREIGN  ATTACHMENT, 

■when  procured  in  a  foreign  country,  a  bar,  118,  232. 

FOREIGNERS, 

rights  and  liabilities  of,  how  affected  by  the  lex  loci,  81,  100. 

(See  Place,  Laav  of.) 

FOREIGN   STATES, 

whether  the  States  of  the  Union  are  foreign  as  to  judgments,  119,  n. 

(;;),  123-126,  232, 

n-  (9)- 
as  to  bankrupt  laws,  535, 

*  536. 

contracts  between,  530. 

(See  Place,  Law  of.) 

FORMER  JUDGMENT, 

a  defence,  234-239. 

(See  Judgment.) 

FRANCHISE, 

of  a  corporation,  may  be  taken  by  the  State  for  public  purposes? 

on  providing  compensation,  521  -  525. 

FRAUD, 

as  a  defence,  264  -  284. 

not  defined  by  the  law,  266. 

sphere  of  the  moral  law  and  of  municipal  law  compared,  264-  266. 

materiality  of,  necessary  to  avoid  a  contract,  266. 

what  is  material,  206,  n.  (m),  207. 

to  be  determined  by  the  jury,  267. 

must  be  actually  injurious,  208. 

damages  for,  only  recoverable  for  the  injury  directly  attributable 

to,  268. 

in  false  representations  of  a  party's  solvency,  207,  n.  (n),  269,  n. 

(r)  and  (/),  270,  274,  n.  (h). 

on  representations,  literally  true,  but  substantially  false,  269. 

must  be  such  as  the  injured  party  had  a  right  to  rely  upon,  270. 

on  ccstuis  que  trust,  infants  and  persons  of  feeble  mind,  270,  271. 

effect  of  intention  in,  267,  n.  (o),  209,  271,  281  -  283. 


INDEX.  565 

FKAUD,  continued. 

in  a  matter  collateral  to  the  contract,  272,  273. 

concealments  when  amounting  to,  273,  274. 

exj^ressions  of  opinion  and  statements  of  fact  distinguished,  275. 

misrepresentations  of  third  jiarties  adoj^ted,  or  of  an  agent,  276, 

277. 
false  representations  of  a  party's  solvency,  267,  n.  (u),  269,  notes 

(?•)  and  (0,  270,  274,  n.  (A),  276,  notes  (in)  and  (?i). 
rescission,  in  cases  of,  277  -  279. 
•where  both  parties  are  in  fault,  277. 

bow  availed  of,  as  a  defence  at  law  and  in  equity,  279,  280. 
not  presumed,  281. 
in  false  statements,  how  affected  by  a  party's  means  of  knowledge, 

281-284. 
award  avoided  for,  213. 
in  the  alteration  of  an  instrument,  224  -  231. 
when  the  statute  of  limitations  begins  to  run  on,  378. 
FRAUDS,  STATUTE  OF, 

provisions  of,  284,  285. 
signing  required  by,  285  -  294. 

when  a  letter  amounts  to,  285,  and  n.  (c). 
writing  of  the  agreement  not  sufEcient,  285,  286. 
place  where  the  name  may  be  written,  287-  289. 
when   the   requirement   to   be   "  subscribed "   is 

satisfied,  289. 
when  the  same  is  printed  or  written  in  pencil, 

289,  290. 
by  the  party  to  be  charged,  alone  necessary,  290. 
by  an  agent,  when  sufficient,  291,  292. 
when  the  agent  may  be  authorized  by  parol,  291, 
n.  (7i),  293,  294. 
sales  by  auctioneers,  sheriffs,  and  masters  in  chancery,  within, 

292,  n.  (r). 
the  names  of  the  parties  to  be  expressed,  294,  n.  (u). 
the  subject-matter  to  be  set  forth,  294,  n.  (u). 
when  the  price  is  to  be  stated,  294,  n.  (u). 
consideration,  whether  required  to  be  expressed,  295-  297. 
form  of  agreement,  required  by,  297-300. 

when  made  up  of  separate  papers,  298. 
when  a  part  of  the  agreement  conforms  to  the  statute,  and  the  rest 

does  not,  whether  the  whole  or  a  part  void,  298,  299. 
promises  by  executors  and  administrators,  when  within,  284,  300. 
promises  "  to  answer  for  the  deht,  default,  or  miscarriage  of  ano- 

tler"  when  within,  300  -  309. 
the  promise  must  be  collateral,  300  -  302. 

must  be  made  to  the  party  to  whom  the  person  under- 
taken for  is  liable,  302,  and  n.  (in). 
VOL.  II.  48 


566  INDEX. 

FRAUDS,  STATUTE  OF,  continued. 

tlic  promise  must  not  operate  as  a  discharge  of  the  original  "debtor, 
302-304. 
must  not,  when  performed,  leave  the  original  party 

still  liable,  304. 
must  not  be  equivalent  to  the  purchase  of  a  debt,  305. 
not  -within  the  statute  -when  its  main  purpose  is  to  sub- 
serve some  purpose  of  the  promissor,  305  -  307. 
consideration  of  the  guaranty,  whether  to  be  expressed,  295,  n. 

{w),  296,  n.  (x),  297,  n.  (z). 
sales  by  a  factor,  not  within,  307. 

cases  where  the  liability  to  pay  the  debt  of  another  arises  out  of 
some  trust  or  transaction  between  the  parties,  without  the  aid  of 
a  special  promise,  not  within,  307  -  309. 
promises  to  answer  for  another's  torts,  within,  309. 
Promises  "  in  consideration  of  marriage"  309-311. 
to  marry,  not  within,  310. 

to  marry  after  a  period  longer  than  a  year,  within,  310. 
in  the  nature  of  settlement,  advancement,  or  provision, 

in  view  of  marriage,  within,  310. 
effect  of  parole  promise  before  marriage,  on  a  written 

promise  subsequent  to,  310. 
what  writing  is  sufficient,  310,  311. 
"  Contracts  or  sales  of  lands,  tenements,  or  hereditaments,  or  any  in- 
terest in  or  concerning  them,"  within,  311  -  31G. 
when  contracts  for  the  sale  of  growing  crops  ax-e  within,  311-  314. 
contracts  to  pay  for  improvements  on  land,  not  within,  314,  315. 

for  sale  of  removable  fixtures,  not  within,  314. 
a  mere  license  to  enter  on  land,  not  within,  315. 
when  contracts  for  sale  of  the  property  of  a  corporation  are  within, 

315. 
contracts  within,  when  executed,  the  payment  of  the  consideration 

recoverable,  315,  318,  319. 
contracts  not  to  he  performed  tcithin  a  year,  when  within,  316  -  319. 

for  tJie  sale  of  goods,  when  within,  319-336. 
acceptance  and  delivery  required  by,  what  amounts  to,  319-  322. 
constructive  delivery,  322-324. 

in  a  sale  by  sample,  324. 
acceptance,  what  is  equivalent  to,  324,  325. 
rights  of  buyer,  when  after  acceptance  the  article  proves  deficient 

in  quantity  or  quality,  325  -  327. 
whether  delivery  to  a  carrier  is  sufficient,  327  -  330. 
stock  and  shares  of  a  corporation  within,  315,  330-332. 
sales  of  promissory  notes  within,  331,  n.  (?«). 
earnest,  what  amounts  to,  332. 
part  payment  of,  the  same  efl'eci;  as  earnest,  332  . 
when  executory  contracts  arc  within,  333  -  386. 


INDEX.  567 

FRAUDS,  STATUTE  OF,  continued. 

contracts  -within,  operation  of  tlie  statute  on,  336  -338. 

how  atfecting  third  parties,  338. 

when  executed,  338. 
when  cases  taken  out  of,  by  part  performance,  339,  340. 

G. 

GRACE,  DAYS  OF, 

the  usage  of  banks,  49,  n.  (~),  58. 
notes  without,  due  on  Sunday,  payable  on  Monday,  278. 
GRANTS, 

construction  of,  so  as  to  be  made  operative,  7,  n.  (^),  15,  16. 
to  be  construed  favoi-ably  to  the  grantee,  18. 
aliter,  if  the  sovereign  or  State  is  the  grantor,  18,  n.  (JS). 
imply  whatever  is  essential  to  their  use  and  enjoyment,  45,  46. 
within  the  contracts  protected  by  the  constitution,  509,  513-515. 
how  construed,  515-517. 
when  may  be  taken  for  public  purposes,  517-527. 
GUARANTY, 

whether  to  be  construed  against  guarantor  or  guarantee,  21. 
extrinsic  evidence  admitted  to  prove  that  the  consideration  was 

not  executed,  75. 
notice  to  guarantor,  1 74. 
consideration  of,  when  to  be  in  writing,  295,  n.  (w),  296,  n.  (x), 

299,  n.  (s). 
when  within  the  statute  of  frauds,  300  -  309. 
(^See  Frauds,  Statute  of.) 
guarantor  may  set  up  the  defence  of  usury,  399. 

I. 
ILLEGAL  CONTRACTS, 

illegality,  a  good  defence,  186,  187. 

in  a  severable  contract,  29,  n.  (w). 
money  paid  in  furtherance  of,  when  recoverable,  252,  253. 
Of  contracts  in  restraint  of  trade,  253-  259. 
reason  and  origin  of  the  law  prohibiting  the  restraint  of  trade,  253  - 

257. 
the  rule  illustrated  by  cases,  254,  n.  (x). 

modified  in  this  country,  257  -  259. 
Of  contracts  opposed  to  the  revenue  laws  of  other  countries, 250,260. 
Of  contracts  which  tend  to  corrupt  legislation,  260. 
Of  wagering  contracts  —  when  void,  261,  262. 
Of  maintenance  and  champerty,  262  —  264. 
IMPLICATIONS, 

of  law  in  construing  instruments,  nature  and  scope  of,  27,  28. 
IMPOSSIBILITY, 

of  performance,  when  a  defence,  184-  186,  188. 


568  INDEX. 

BIPRISONMENT, 

for  debt,  laws  abolishing,  do  not  interfere  •witli  tlie  obligation  of 
contracts,  532,  533  -  535. 
IMPROVEMENTS, 

on  real  estate,  bond  fide  holders  claim  for,  495-498. 
INCAPACITY  OF  PARTIES, 

(&e  Pauties.) 
INCIDENT, 

cannot  be  annexed  to  a  contract,  till  the  contract  is  first  proved,  49, 
n.  (.). 
INCIBIBRANCES, 

damages  for  breach  of  covenant  against,  502,  503. 
INDENTURE, 

the  rule,  verla  fortius  accepienter.  contra  proferentem.,  when   ap- 
plied to,  20  -  22. 
INDORSEE, 

innocent,  rights  of,  on  usurious  bills  and  notes,  394,  395. 
INDORSEMENT, 

{See  Bills  of  Exchange  and  Promissory  Notes.) 
INFANTS, 

capacity  of,  how  affected  by  the  lex  loci,  85  -87. 
tender  for,  by  a  friend,  151. 
INSOLVENT, 

bank,  payment  in  bills  of,  134. 

acknowledgment  by,  whether  sufficient  to  revive  a  debt  barred  by 

the  statnte  of  limitations,  351. 
laws  of  a  State,  how  affected  by  the  constitution  of  the  United 
States,  530  -  536. 

(See  Bankruptcy.) 
INSTALMENTS, 

suit  for,  132,  147,  463. 
INSURANCE, 

construction  of  a  policy  of,  9,  n.  (m),  12,  n.  (q). 

meaning  of  terms  in,  fixed  by  usage,  48,  n.  (y),  49,  n.  (z),  50,  n. 

(a),  55,  n.  (/). 
meaning  of  terms  in,  the  usage  must  be  the  usage  of  the  past,  53, 

n.  (e). 
meaning  of"  between  two  days  "  in,  178,  n.  (o). 
INTENTION, 

effect  of,  in  ascertaining  domicile,  91. 
fraud,  2G7,  n.  (o),  269,  271. 
computing  damages,  443-445,  473,  487. 
confusion  of  goods,  474,  475. 

assessing  damages  for  breach  of  covenant  in  sale  of 
real  estate,  499,  503  -  505. 
(See  Fraud.) 


INDEX.  569 

INTEREST, 

legal  rate  of,  in  a  contract,  determined  by  the  place  of  performance, 

95-100. 
calculation  of,  on  bonds  and  notes,  -when  partial  payments  have 

been  made,  146. 
when  instalments  of,  may  be  sued  for  without  suing  for  the  princi- 
pal, 147. 
INTEREST  AND  USURY, 

Of  interest^  and  ivhen  it  is  recoverable,  380-383,489. 
when  implied  by  the  law  on  a  contract,  380,  381. 
for  wrongful  detainer  of  money,  381. 
for  torts  and  unliquidated  damages,  382. 
What  constitutes  usury,  383  -  385. 
Immateriality  of  the  contract,  385-392. 
usury,  form  immaterial,  385,  387. 
burden  of  proof  of,  386,  387. 
in  loans  on  notes,  386. 
in  loans  of  stock,  388-390. 
in  sales  of  short  annuities,  388,  n.  (e). 
when  the  contract  is  contained  in  separate  instruments,  390. 
laws  against,  how  evaded,  391. 
in  foreign  contracts,  95,  n.  (e),  391,  392. 
The  contract  itself  must  he  tainted  with  usury,  392-394. 
when  the  original  contract  is  good,  and  a  second  contract  void  for 

usury,  392. 
agreement  to  pay  a  sum  beyond  lawful  interest,  by  way  of  penalty, 

not  usurious,  393,  394. 
agreement  to  take  usurious  interest  not  conclusively  implied  from 

the  taking  thereof,  394. 
Substituted  securities  are  void,  394-400. 

usury  in  the  inception  of  a  note,  effect  of  on  the  rights  of  in- 
dorsees, 394,  395. 
usury  in  the  indorsement,  effect  of,  on  the  liability  of  the  maker, 

395. 
when  the  substituted  security  is  purged  from  usury,  396  -  398. 
against  whom  the  defence  of  usury  may  be  made,  397-400. 
Distinction  between  the  invalidity  of  the  contract  and  the  penalty  im- 
posed, iOO  -  A05. 
usury,  when  the  offence  of,  is  complete,  400  -  403. 

how  availed  of  by  the  debtor,  in  suits  at  law  and  in  equity, 

403,  404. 
recoverable  in  a  suit,  405. 
Of  contracts  accidentally  usurious,  405  -  408. 
usury  taken  under  a  mistake  of  fact,  corrected,  405. 

law,  illegal,  405,  406. 
when  the  offence  of,  is  committed  by  banks  in  the  calculation 
of  interest,  407. 
48* 


570  INDEX. 

INTEREST  AND  USURY,  continued. 

Of  discount  of  notes  and  hills,  408-410. 

wlietlier  receiving  the  interest  in  advance  13  usurious,  408,  409. 

Of  a  charge  of  compensation  for  service,  410  -414. 

Tvhen  a  commission  for  services  is  not  usurious,  410-412. 

•when  a  charge  for  the  rate  of  exchange  is  not  usurious,  413. 

on  the  paj-ment  of  a  bill  before  it  is  due,  larger  sum  than  legal 

interest  may  be  deducted,  413,  414. 
Of  a  charge  for  compensation  for  risk  incurred,  414-419. 
extra  interest  allowed  -when  the  payment  of  the  principal  depends 

on  contingencies,  as  in  loans  on  bottomry  and  respondentia,  414  - 

416. 
extra  interest  in  the  purchase  of  annuities  and  rent  charges,  416, 

417. 
extra  interest  in  loans,  the  payment  of  which  depends  on  the  life 

of  the  parties,  418. 
extra  interest  in  ^)osi  obit  bonds,  418. 
Contracts  in  which  a  lender  becomes  a  partner  —  when  usurious, 

419,  420. 
Of  sales  of  notes  and  other  choses  in  action,  421  -427. 
at  less  than  the  nominal  value,  when  good,  421  -  423. 
when  the  indorseris  liable  on  default  of  maker,  423-426. 
indorsement,  or  making  of  negotiable  paper  for  a  premium,  426, 427. 
cross  notes  between  parties  at  different  rates  of  interest,  not  usuri- 
ous, 427. 
Of  compound  interest,  427  -432. 
not  usurious,  427,  428. 

agreement  to  convert  interest  into  principal,  when  valid,  428-430. 
annual  rests  in  merchants'  accounts  allowed,  428  -  430,  n.  {x). 
Legal  rates  of  interest,  and  penalties  for  violation  of  the  usury  laws 

in  the  several  States,  430,431. 
INTERLINEATION, 

(See  Alt^ratiox.) 
INTERPRETATION  OF  CONTRACTS, 

(See  CoxsTRucTioN  of  Contracts.) 

J. 

JOINT  PARTIES, 

when  presumed  to  be  such,  45. 
payment  to  one  of,  128. 
plaintiffs,, discharge  by  one,  129,  n.  (<). 

new  promises  and  part   payments   by  one  of,  effect  of  in  reviving 
debts  barred  by  the  statute  of  limitations,  359-366. 
JUDGMENTS, 

foreign,  when  a  bar,  117-119. 

foreign  jurisdiction  of  the  court,  and  notice  to  parties  necessary  to 
the  finality  of,  120-123. 


INDEX.  571 

JUDGMENTS,  continued. 

of  one  Stafeof  the  Union,  effect  of  in  another,  120,  n.  (.7),  123-126. 
awards  analogous  to,  213. 

former,  a  bar  to  another  suit,  -when  on  the  same  matter  in  issue,  234- 
matter  in  issue,  when  the  same,  235,  238. 
when  trover  or  trespass  is  a  bar,  23G,  237. 
to  be  a  bar,  must  be  between  the  same  parties  and  not 
obtained  by  mistake,  238,  239. 
set  off  of,  240  -  242. 

interest  allowed  in  an  action  of  debt  on,  380. 
for  a  part  of  a  debt  when  a  bar,  132,  147,  463. 
JURY, 

ofEce  of,  in  determining  the  construction  of  a  contract,  4,  5. 
what  is  a  material  fraud,  determined  by,  26  7. 

whether  an  acknowledgment  revives  a  debt  barred  by  the  statute  of 
limitations,  how  determined  by,  348. 
{See   Courts.) 

L. 
LAND,  41 

(See  Real  Property,  Real  Actions,  Leases.) 
LAW, 

questions  of,  what  are, 

(See  Courts.) 
LAW  OF  PLACE, 

(See  Place,  Law  of.) 
LEASES, 

construction   of  the  words  "jointly  and   severally"  in,  13,  n,  (r). 
"  from  the  day,"  15,  n.  (z),  175,  177. 
of  the  covenant  to  repair,  507. 
when  construed  against  the  lessor,  18,  n.  (_;),  20,  22. 
■when  an  instrument  is  to  be  construed  as  a  lease,  or  an  agreement 

for  a  future  lease,  24. 
construction  of  the  relative  word  "  his  "  in,  25,  n,  (k). 
implied  covenants  in,  how  effected  by  the  expression  of  covenants, 

28. 
effect  of  usage  in  the  construction  of,  49,  n.  (z). 
rent  on,  when  apportioned,  171,  n.  (a), 
signature  to,  required  by  the  statute  of  frauds,  when  sufficient,  287, 

n.  (e)  and  (/). 
covenants  in,  damages  for  breach  of,  507. 
LETTER, 

contract  by,  when  made,  94. 
payment  by,  at  whose  risk,  132. 
of  attorney,  no  tender  to  be  made  for,  151,  n.  (r). 
when  a  sufficient  memorandum  by  the  statute  of  frauds,  285,  and 
n.  (c),  310,311. 


572  INDEX. 

LEX  LOCI,  79-126. 

(See  Place,  Law  of.) 
LEX  LOCI  CONTRACTUS, 

(See  Place,  LA^y  of.) 
LEX  LOCI  REI  SITiE, 

{See  Place,  Law  of.) 
LIBEL, 

intent  of,  found  by  the  jury,  4,  n.  (&). 
(See   Slander.) 
LICENSE, 

distinction  between,  and  a  grant,  23. 
to  enter  on  land,  when  implied,  23,  46. 

when  not  witliin  the  statute  of  frauds,  315. 
when  revocable  under  the  U.  S.  Constitution,  538. 
LIEN, 

of  attorney  on  an  award,  213, 
of  factor,  when  set  off,  prevented  by,  249. 
damages  where  a  party  holds  under  a,  471,  476,  479. 
LIMITATION, 

of  actions,  governed  by  the  lex  fori,  KM,  103. 
LimTATIONS,  STATUTE  OF, 

The  general  purpose  of  the  statute,  341  -  347. 

founded  on  a  principle  of  the  common  law,  341. 

whether  a  statute  of  presumption  or  repose,   change  of  judicial 

opinion,  342  -345. 
policy  of,  346,  347. 
Of  a  neto  promise,  347-353. 

what  amounts  to  a  new  promise,  343,  n.  (y),  345,  n.  (c),  347. 
when  an  acknowledgment  is  equivalent  to,  and  how  determined, 

348-351. 
when  sufficiently  definite,  349. 
whether  the  acknowledgment  of  a  party  in  bankruptcy  is  sufficient, 

351. 
effect  of  the  charge  of  a  new  item  in  a  mutual  account,  351  -  353. 
Of  part  payment,  353-359, 
cases  taken  out  of  the  statute  by,  when  made  in  goods  or  negotiable 

paper,  353-356. 
appropriation  by  the  creditor  so  as  to  revive  debts  barred  by  the 

statute,  not  allowed,  141,  356. 
part  payment  accompanied  by  a  denial  of  the  debt  does  not  revive 

it,  350. 
balance  of  mutual  accounts,  effect  of  striking,  356. 
payment  by  the  debtor  for  the  creditor,  effect  of,  356,  357. 
part  payment  not  required  to  be  in  writing,  to  be  effectual  to  re- 
vive the  debt,  357. 
whether  the  written  acknowledgment  of  an  agent  is  sufficient,  357  - 
369. 


INDEX.  673 

LIMITATIONS,  STATUTE  OF,  continued. 

Of  71  ew  promises  and  part  payments  hy  one  of  several  joint  debtors, 
359-366. 

•when  sufficient  to  revive  a  debt  against  otlier  joint  parties,  359-362. 
as  against  sureties,  3 62. 

as  against  partners  after  the  dissolution  of  the  firm,  364. 

•when  made  in  fraud  or  expectation  of  bankruptcy,  363. 

■when  admissible  as  evidence,  not  conclusive,  364. 

statutory  provisions  which  revive  the  debt  against  the  joint  debtor 
promising,  and  not  against  the  others,  364. 

to  whom  the  promise  to  be  effective  must  be  made,  365. 

Of  accounts  between  merchants,  366  -  370. 

■what  constitutes  an  account,  366,  367. 

■who  are  merchants,  367  -  369. 

■whether  the  last  item  must  have  been  -within  six  years,  369. 

When  the  period  of  limitations  begins  to  run,  370-  373. 

on  the  expiration  of  the  credit,  370. 

■where  third  parties  are  interested,  371. 

on  negotiable  paper,  371,  372. 

on  the  breach  of  a  contract,  372,  373.  , 

on  money  payable  by  instalments,  373. 

on  the  claims  of  attorneys  for  professional  services,  373. 

Of  the  statute  exceptions  and  disabilities,  373  -380. 

what  are,  373. 

when  the  disability  must  exist,  374. 

absence  of  the  defendant,  375  -  378. 

"  beyond  seas  "  —  the  meaning  of  the  term,  378.        , 

fraud,  when  the  statute  begins  to  run  on,  378. 

The  statute  affects  the  remedy  only,  and  not  the  debt,  379. 

defeated,  when  by  a  withdrawal  of  set-off,  252. 

appropriation  of  payjnent  where  one  debt  is  barred  by,  140. 

by  a  State,  constitutional,  588. 
LIQUIDATED  DAMAGES, 

(See  Damages.) 
LIS  PENDENS, 

when  a  good  cause  of  abatement,  231  -  234. 
LITIGATION, 

expenses  of,  when  recoverable  aa  damages,  441,  442,476,  487- 
489,495,  502,  n.  {h). 
LOCI,  LEX,  79-126. 

( See  Place,  Law  of.) 

M. 
MAINTENANCE, 

contracts  resting  on,  void,  262. 
MARRIAGE, 

contracts  in  consideration  of,  how  construed  so  as  to  be  sustained, 
15,  n.  (x). 


574  INDEX. 

MARRIAGE,  continued. 

valid  where  contracted,  valid  everywhere,  104,  105. 

foreign,  invalid  in  a  State  -where  prohibited  as  incestuous,  106. 

efi'ect  of,  in  a  State  -where  -within  the  prohibited  degrees, 

107-109. 
effect  of,  -when  contracted  abroad  to  evade  the  la-ws  of  the 
State  -where  the  parties  are  domiciled,  104,  n.  (p),  109, 
110. 
settlements,  validity  determined  by  the  laws  of  the  State  where 

made,  110. 
capacity  of  wife  to  contract,  governed  by  the  lex  loci  contractus, 

111. 
between  the  parents  of  a  child  after  its  birth,  effect  of.  111,  112. 
place  of  domicile  not  determined  by,  112,  113. 
whether  a  sacrament  or  a  civil  contract,  113,  114. 
dissolution  of,  how  affected  by  the  lex  loci,  114-117. 
appropriation  of  payments,  where  one  debt  was  contracted  by  the 

wife  before,  141. 
when  a  release,  15  n.  (x),  222. 

promises  to  marry,  or  in  consideration  of,  when  within,  309-311. 
how  affected  by  the  constitution  of  the  United  States,  527-530. 
MARRIAGE  SETTLEMENTS, 

(See  Mahriage.) 
MARRIED  WOMAN, 

(See  Wife.) 
MERCHANTS, 

accd^mts  between,  excepted  from  the  statute  of  limitations,  366  - 

370. 
accounts  between,  annual  rests  allowed  in,  430,  n.  (x). 
MESNE  PROFITS, 

when  recoverable  in  real  actions,  494,  496,  500. 
MISREPRESENTATIONS, 

(See  Fraud.) 
MISTAKES, 

Avhen  corrected  by  construction,  8, 10,  26,  27. 
of  arbitrator,  when  avoiding  an  award,  213  -  217. 

(See  Fraud.) 
in  statements  in  contracting  for  usurious  interest,  effect  of,  405  - 
408. 
MIXED  ACTIONS, 

damages  in,  494. 
MIXTURE, 

of  goods,  474,  475. 
MORTGAGE, 

when  usurious,  rights  of  parties  in,  399. 


INDEX.  575 

MUTUAL  CONTRACTS, 

dependent  and  independent  covenants,  eflect  of  each  respectively, 
40,187,  188. 

■whether  dependent  or  independent  determined  by  interest  of  the 
parties,  41. 

rules  for  determining  whether  covenants  are  dependent  or  inde- 
pendent, 41,  n.  (I),  189. 

N. 
NEGLIGENCE, 

of  plaintiff,  effect  of,  in  reducing  damages,  for  injury,  454,  n.  (n), 
461,  n.  (?i),  469. 
NOMINAL  DAMAGES, 

when  recoverable,  492  -494. 

in  ejectment,  494. 
NOTES, 

{See  Bills  of  Exchange.) 
NOTICE, 

of  carrier,  to  be  construed  against  himself,  19. 

to  a  guarantor,  1 74. 

within  a  reasonable  time,  what  amounts  to,  173,  174.  • 

when  necessary,  180-182. 

by  whom  to  be  given,  how  determined,  184. 

to  parties  to  an  award,  217,  218. 

of  set-off,  251. 
NOVATION, 

satisfaction  by,  137,  138. 

O. 
OBLIGATION, 

of  a  contract,  meaning  of  the  term  in  the  U.  S.  Constitution,  536, 
537. 
OBLIGOR, 

condition  in  a  bond  to  be  construed  in  favor  of,  22,  n.  (y). 
liability  of,  after  an  alteration  by  the  obligor,  226,  notes  (<)  and  (u). 
(See  Bond.) 

P. 

PARENTS, 

domicile  of,  that  of  the  child,  94. 

intermarriage  of,  after  birth  of  a  child,  effect  of  on  its  legitimacy, 
113. 
PAROLE  EVIDENCE, 

{See  Evidence.) 
PARTIES, 

to  a  written  contract,  incapacity  of,  provable  by  parol  evidence,  66 
capacity  of,  presumed,  84. 


576  INDEX. 

PARTIES,  continued. 

incapacity  of,  natural  and  artificial,  85. 

incapacity  of,  artificial,  whether  determined  by  the  lex  loci  domicilii, 
or  the  lex  loci  contractus,  84-90. 
to  contract  marriage,  how  affe'cted  by  domicile,  104  - 
113. 
PARTNER, 

payment  to,  binding  on  the  firm,  127. 

appropriation  of  payments  when  a  private  and  a  firm  debt  is  owed 

by,  143,  144. 
acknowledgment  by  one,  after  dissolution  of  the  firm,  effect  of  in 

reviving  a  debt  barred  by  the  statute  of  limitations,  359-364. 
when  a  lender  becomes  a  partner,  so  that  the  loan  is  not  usurious, 
419,420. 
PART  PAYMENT, 

when  a  satisfaction  of  the  whole,  129-  132, 198. 
effect  of  suit  for,  132  -  147. 
required  by  the  statute  of  frauds,  332. 

effect  of,  in  reviving  debts  barred  by  the  statute  of  limitations, 
353-359. 
PAltr  PERFORMANCE. 

when  the  contract  is  severable,  33,  170. 

entire,  29-32,  172. 
when  a  defence  to  a  suit  by  the  party  performing  in  part,  248  -  251. 
when  the  unperformed  part  is  incidental  and  unimportant,  172. 
when  the  failure  to  complete  is  not  the  fault  of  the  employee,  34, 

35. 
when  compensation  for,  may  be  set  off,  246. 
when  cases  taken  out  of  the  statute  of  frauds  by,  339,  340. ' 
in  the  conveyance  of  real  estate,  damages,  501. 
PAYMENT, 

0/  money,  126-  147. 

Of  the  parly  to  zvJiom  payment  should  be  made,  126-  129. 

to  an  agent,  binding  on  the  principal,  126. 

to  the  agent  of  an  agent,  127. 

to  the  creditor's  wife,  127. 

to  a  partner,  127. 

to  a  sheriff  em})loyed  to  serve  a  writ,  127,  n.  (c). 

to  an  auctioneer,  127. 

to  one  of  joint  creditors,  127,  n.  ((/),  128. 

to  one  of  joint  trustees,  128. 

to  one  of  joint  assignees,  128. 

to  one  of  several  executors,  128. 

to  a  trustee  for  the  cestui  que  trust,  128. 

discharge  by  a  nominal  plaintiff,  129. 

one  of  several  plaintiffs,  129  n.  (t). 
Of  pari  payment,  129-132. 


INDEX.  577 

PAYMENT,  continued. 

part  payment,  in  general,  not  a  satisfaction  of  the  whole,  129,  130, 

198. 
when  part  payment  is  full  satisfaction,  130,  131, 198,  n.  (/). 
suit  for  a  part  of  a  claim,  effect  of,  132, 147,  463,  464. 
Of  payment  by  letter  —  at  whose  risk,  132. 
Of  payment  in  bank-hills,  133-135. 
in  bank-bills,  good  if  not  objected  to,  133,  134. 
in  forged  bills  or  bills  of  insolvent  banks,  whose  loss,  134,  135. 
in  forged  bills  of  a  bank,  to  its  own  officers,  134,  notes  (/),  (g). 
Of  payment  by  check,  effect  of,  135. 
Of  payment  by  note,  136. 

giving  a  negotiable  promissory  note,  whether  equivalent  to,  136, 196. 
Of  payment  by  delegation,  137,  138. 

made,  where  the  debtor  directs  a  person  indebted  to  him  to  appro- 
priate the  debt  or  a  part  thereof  to  the  benefit  of  his  creditors 

under  what  circumstances  a  payment,  137,  138. 
Of  stakeholders  and  wagers,  138-  140. 

rights  of  parties  to  the  deposit,  138,  140.  • 

illegal  wagers,  139. 

duty  of  auctioneei',  as  stakeholder,  139. 
Of  appropriation  of  2>ayments,  140  -  147. 
right  of  debtor  to  make,  140. 
right  of  creditor  to  make  when  the  debtor  makes  none,  141. 

how  restricted,  142,  143. 
how  made  by  the  law,  141. 
effect  of,  when  made  by  the  creditor,  in  reviving  debts  barred  by 

the  statute  of  limitations,  141,  356. 
by  debtor,  when  impHed,  141,  142. 
^  duty  of  creditor,  where  the  debtor  owes  one  debt  in  his  own  rio-ht 

and  another  as  executor,  142. 
when  one  is  a  prior  legal  debt  and  the  other  a  sub- 
sequent equitable  claim,  142. 
right  of,  accrues  only  where  the  debtor  has  had  an  opportunity  to 

make  the  appropriation,  143.  , 

how  made  when  the  securities  are  different,  143. 

the  sum  paid  will  precisely  satisfy  one  debt,  143. 
one  liability  is  contingent,  143. 
where  one  debt  is  a  partnership  debt,  and  the  payment 

is  made  with  partnership  funds,  144. 
when  the  payment  is  to  a  firm,  after  a  change  of  mem- 
bers, 144. 
when  there  is  a  continuous  account,  144. 
for  the  benefit  of  sureties,  145. 

when   there  have   been   partial   payments  on  bonds, 
notes,  or  other  securities,  146,  147. 
when  suit  may  be  brought  for  an  instalment  of  interest  without 
VOL.   ir.  49 


5  I  8  IXDEX. 

PAYMENT,  continued. 

suing  for  the  principal,  132  -  147. 

of  money  into  court,  effect  of,  149,  n.  (/). 

effect  of,  in  reviving  debts  barred  by  the  statute  of  limitations, 
353-359. 

place  of,  governs  the  contract,  94  -  100. 
PENALTY, 

money  paid  by  way  of,  for  non-payment  of  a  debt  when  due,  not 
usurious,  393. 

of  a  usurious  contract,  distinction  between  and  its  invalidity,  400  - 
405. 

when  the  sum  stated  in  a  contract  as  damages  for  its  breach  is  re- 
garded as,  433  -441. 
PENDENCY  OF  ANOTHER  SUIT, 

when  a  good  cause  of  abatement,  231,  232,  233,  n.  (I). 

in  a  qui  tarn  action,  the  parties  need  not  be  the  same,  233. 

in  a  foreign  tribunal,  not  a  good  cause  of  abatement,  232,  n.  (/). 

whether  the  courts  of  the  States  and  of  the  United  States  are 
foreign,  232,  n.  0'). 
PENDENS  LIS, 

when  a  good  cause  of  abatement,  231  -  234. 
PERFORMANCE, 

what  is  necessary  to,  147  -  187. 

readiness  merely  is  not  sufficient,  148. 

Of  lender,  148-15  7. 

when  allowed,  148,  149. 

plea  of,  admits  the  contract,  149. 

effect  of,  149. 

when  made  in  court,  effect  of,  149,  n.  (/). 

to  whom  and  by  whom  to  be  made,  150,  151. 

amount  to  be  tendered,  151-153. 

when  to  be  made  at  common  law,  148,  n.  (^),  153,  154. 
by  statute,  153,  154. 

what  constitutes  a  tender,  154,  155. 

must  be  unconditional,  155. 

whether  a  receipt  may  be  required,  155,  156. 

cannot  be  in  bank  bills  if  objected  to,  133,  15  7. 

effect  of,  defeated  by  a  subsequent  demand  and  refusal,  157. 

on  the  operation  of  the  statute  of  frauds,  315- 318,  319, 
338-340. 

Of  the  tender  of  chattels,  157-  1G8. 

what  acts  amount  to,  157-160,  164. 

what  profert  necessary,  160. 

must  be  unconditional,  160. 

by  or  to  an  agent,  160. 

time  or  place  of,  160  -  1G3. 

when  the  promisor  may  elect  to  tender  money  or  chattels,  163. 


INDEX.  679 

PERFORMANCE,  continued. 

of  a  part,  where  the  contract  is  entire,  163. 
contract  to  deliver,  reasonably  construed,  164. 

at  a  certain  time  and  place,  -when  discharged  by 

tender,  164. 
when  the  property  passes  by  the  tender,  165- 
168. 
Of  the  kind  of  performance,  168  - 170. 
to  be  reasonable,  168. 

when  the  exact  method  is  prescribed,  168,  169. 
when  the  contract  is  in  the  alternative,  163,  169,  170. 
Of  part  performance,  170-1 73. 
effect  of,  when  the  contract  is  severable,  33,  170. 

contract  is  an  entirety,  29-32,  172. 
part  unperformed  is  incidental   and   unimpor- 
tant, 172. 
effect  of,  when  the  failure  to  complete,  not  the  fault  of  the  party 

whose  duty  it  is  to  perform,  34,  35. 
how  the  entirety  or  severalty  of  contracts  is  determined,  29  -  34. 
{See  Entirety  of  Contracts,  Apportionment  of  Contracts,  Con- 
struction.) 
Of  the  time  of  performance,  173-180. 

reasonable  time  presumed  in  the  absence  of  stated  time,  173. 
how  determined,  173,  174. 
for  notice  to  a  guarantor,  1 74. 
whether  the  day  when  the  contract  is  made  should  be  excluded  or 

included  in  the  computation,  15,  n.  (x),  175-177. 
when  the  date  is  impossible,  or  not  named,  177. 
when  Sunday  intervenes,  178,  179. 

whether  a  party  can   be  sued  for  failure  to  perform  before  the 
expiration  of  the  time  of  performance,  who  has  in  the  meantime 
incapacitated  himself,  179,  188. 
Of  notice,  180-  184. 
necessity  of,  when  created  by  express  terms  of  the  contract,  180. 

the  law,  181  -  182. 
by  whom  to  be  given,  how  determined,  184. 
Of  impossibility  of  performance,  184-187. 

performance  of  an  act,  made  impossible  by  act  of  God,  excused, 
184. 

performance  of  an  act  otherwise  impossible,  when  excused,  185, 

186,188. 
illegality  of  contract,  a  good  defence,  186,  187. 
Of  defences  resting  upon  the  acts  or  omissions  of  the  plaintiff,  187- 

193. 
failure,  or  inability,  or  refusal  to  perform  a  condition  precedent,  40, 

187-189,  191. 
rescission  of  contract,  by  mutual  consent,  189,  190. 


580  INDEX. 

PERFORMANCE,  continued 

rescission  of  contract,  when  in  the  power  of  one  party  on  account 
of  the  other's  default,  191. 
under  what  circumstances  allowed,  191  - 193. 
in  cases  of  fraud,  277-279. 
place  of,  governs  the  contract,  94  -  100. 
PERSONAL  PROPERTY, 

contracts  relative  thereto,  governed  by  lex  loci  contractus,  83. 
tender  of,  157-168. 

notes  payable  in,  damages  in  suits  on,  490-492. 
PLACE, 

of  delivery  of  chattels,  160  - 163. 

(See  Law  of  Place.) 
PLACE  OF  THE  CONTRACT, 

effect  of,  on  its  validity,  94-  100. 
PLACE,  LAW  OF, 

circumstances  which  give  rise  to,  79. 

General  j)7-inciples,  80-84. 

laws  of  a  State  have  no  extra-territorial  force,  80. 

bind  all  persons  and  things  within  the  State,  81. 
foreign  laws,  force  of,  by  international  comity,  82. 
contract,  validity  of,  determined  by  the  lex  loci  contractus,  82. 

construction  of,  determined,  in  case  of  movables,  by  the  lex 
loci  contractus,  83. 
determined,  incase  of  immovables,  by  the 
lex  loci  rei  sita:,  83. 
Capacity  of  parties,  84-90. 
presumed,  84. 
incapacity,  natural  and  artificial,  85. 

artificial,  whether  determined  by  the  lex  loci  domicilii, 
or  the  lex  loci  contractus,  84,  85  -  90. 
Doinicile,  90  -  94. 
nature  of,  90. 

evidence  of,  what  amounts  to,  90,  92,  n.  (x). 
change  of,  how  proved,  91  -  93. 
of  wife,  follows  the  husband's,  93. 
of  a  child,  follows  the  parents',  94. 
of  a  ward,  follows  the  guardians,  94. 
Place  of  the  contract,  94  -  100. 
validity  and  construction  determined  by  the  place  of  performance, 

94-97.  *' 

how  affecting  the  usury  laws,  95,  and  n.  (/),  391. 
how  place  of  performance  determined,  97-100. 
contracts  relative  to  real  property  governed  by  the  lex  loci  rei  sitoi, 

83,  95,  n.  (e). 
Of  the  law  of  the  forum  in  respect  to  process  and  remedy,  100  -  104. 
property  of  foreigners,  how  affected  by  the  lex  loci,  100. 


INDEX.  581 

PLACE,  LAW  OF,  continued. 

remedies,  governed  by  the  lex  fori,  100. 

■whether  right  of  arrest  is  governed  by  the  lex  loci  contractus,  or 

the  lex  fori,  101,  102. 
effect  of,  on  the  limitation  of  actions,  102,  103. 
effect  of,  on  presumption  in  the  use  of  personal  property,  104. 
Of  foreign  marriages,  104-113. 

a  marriage,  valid  where  contracted,  valid  everywhere,  104,  105. 
invalid  in  a  State  where  prohibited  as  incestuous,  106. 
effect  of,  in  a  State  where  it  is  within  the  prohibited 

degrees,  107-109. 
effeot  of,  when  contracted  in  a  foreign  State  in  order 
to  evade  the  laws  of  a  State  where  the  parties  are 
domiciled,  104,  n.  (p),  109,  110. 
mai'riage  settlements,  validity  of,  determined  by  the  law  of  the 

place  where  made,  110. 
capacity  of  wife  to  contract,  governed  by  the  lex  loci  contractus, 

111. 
effect  of  intermarriage  of  parents  after  the  birth  of  a  child,  on  its 
legitimacy,  and  their  subsequent  removal  to  another  State,  111, 
112. 
domicile  of  parties  not  dependent  on  the  place  of  their  marriage, 

112,113. 
Of  foreign  divorces,  113-117. 

marriage,  whether  a  sacrament  on  a  civil  contract,  113, 114. 
divorce  granted  in  the  State  of  the  actual  domicile  of  the  parties, 

valid  everywhere,  114-117. 
whether  the  divorce  obtained  in  another  State  than  that  where  the 
marriage  was  contracted  will  be  acknowledged  in  the   State 
where  it  was  contracted,  114-117. 
Foreign  judgments,  117-126. 

when  a  bar,  117,  118. 
when  prima  facie  evidence  only,  119. 
effect  of  foreign  attachment  on  a  foreign  suit  pending,  118,  119. 

judgments  procured  in  another  State  of  the  Union,  120, 
n.  (ry). 
to  be  final,  must  be  rendered  by  a  court  of  competent  jurisdiction, 
120-123. 
the  defendant  must  have  notice,  123. 
whether  the  States  of  the  Union  are  foreign  as  to  judgments  ren- 
dered in  any  one,  120,  n.  {q),  123-126. 
provisions  of  the  constitution  and  of  the  laws  of  congress  relative 
to  the  effect  of  the  judgments  of  one  State  in  another,  123-126. 
PLEDGE, 

damages  in  trover  for,  477. 
POLICE  REGULATIONS, 

of  a  State,  when  consistent  with  the  clause  of  the  United  States' 
49* 


582  INDEX. 

POLICE  REGULATIONS,  continued. 

constitution,  relative  to  the  obligation  of  contracts,  538,  539. 
POST  OBIT  BONDS, 
when  valid,  418. 
PRESCRIPTION, 

in  the  use  of  personal  property,  governed  by  the  lex  fori,  104. 
PRESUMPTIONS  OF  LAW,  42-48. 

(See  Construction,  &c.) 
PRICE, 

apportionment  of,  how  affecting  the  entirety  of  a  contract,  29-31. 
PRINCIPAL, 

(See  Agent.) 
PROFITS, 

•whether  recoverable  as  damages,  458  -461. 
mesne,  when  recoverable  in  real  actions,  494-496,  500. 
PROMISE, 

new,  what  sufficient  to  revive  a  debt  barred  by  the  statute  of  limi- 
tations, 343,  n.  (y),  345,  n.  (c),  347  -  353. 
PROMISSORY  NOTES, 

(See  Bills  of  Exchange,  &c.) 


Q. 

QUI  TAM  ACTION, 

when  abated  by  the  pendency  of  another  suit,  233. 


R. 

RATES, 

of  interest  in  the  several  States,  430,  481. 
of  exchange,  charges  for,  not  usury,  413. 
REAL  ACTIONS, 

damages  in,  494-  509. 

(See  Damages.) 
REAL  PROPERTY, 

sale  of,  when  an  entire  contract,  29,  n.  (tv). 

conveyance  of,  when  a  condition  precedent  to  a  right  of  action  for 

the  purchase-money,  41,  n.  (I). 
grant  of,  when  it  carries  with  it  a  right  of  way  to,  46. 
when  the  purchaser  of  the  owner's  goods  can  enter  on  his  land  and 

take  them,  46,  47. 
contracts  relative  to,  governed  by  the  lex  loci  rei  sita:,  83,  95,  n. 

auctioneer  employed  to  sell,  no  authority  to  receive  payment  for, 

127. 
conveyance  of,  when  sufBcient  to  satisfy  a  contract,  168,  169. 
fraud  in  sale  of,  266,  u.  (m),  275,  n.  (j). 


INDEX.  583 

'REAL  PROPERTY,  continued. 

sales  of  at  auction,  the  auctioneer  the  agent  of  both  parties,  292, 
n.  (;•). 

contracts  relative  to,  when  within  the  statute  of  frauds,  311  -  316. 

damages  for  breach  of  covenants  in  the  conveyance  of,  494-509. 
(See  Damages.) 
RECEIPT, 

how  controlled  by  extrinsic  evidence,  6  7. 

whether  one  may  be  required  in  a  tender,  155,  156. 
RECITALS, 

effect  of,  in  construing  a  written  instrument,  13,  n.  (r),  14, 15,  220, 
221. 

how  controlled  by  extrinsic  evidence,  66. 
RECOUPMENT, 

difference  between,  and  set-off,  246. 
REDUCTION, 

difference  between,  and  set-off,  246. 
RELEASE, 

deed  of,  not  operative  as  such,  construed  as  a  grant,  the  reversion, 
attornment,  &c.,  15,  16. 

of  mutual  claims,  130,  197. 

mutual  power  of  arbitrator  to  award,  208,  n.  (^),  211. 

what  constitutes  a,  219. 

when  a  covenant  not  to  sue  is  equivalent  to,  219,  220. 

operative  only  on  a  present  right,  220. 

how  construed,  limited  by  the  recitals,  13,  n.  (r),  220,  221. 

not  limited  or  controlled  by  extrinsic  evidence,  221. 

by  a  trustee,  when  set  aside,  222. 

by  one  of  several  plaintiffs,  129,  n.  (t). 

by  operation  of  law,  222. 

by  marriage,  15,  n.  (x),  222. 
REMEDY, 

for  breach  of  contracts  governed  by  lex  fori,  104. 

the  statute  of  limitations  applies  only  to,  379. 

distinction  between,  and  the  obligation  of  a  contract,  531  -  538. 
RENT, 

interest  allowed  in  an  action  for,  381. 
REPAIR, 

covenant  to,  in  a  lease,  damages  for,  507. 
REPLEVIN, 

damages  in  action  of,  477-479. 
REPRESENTATIONS,  (See  Fraud.) 
RESCISSION, 

what  amounts  to,  190,  n.  (k). 

of  a  contract,  by  mutual  consent,  189,  190. 

when  in  the  power  of  one  party  on  account  of  the  other's  default, 
191. 


584  INDEX. 

RESCISSION,  continued. 

under  what  circumstances  allowed,  191  -  193,  483. 

in  cases  of  fraud,  277  -  279. 
RES  JUDICATA, 

when  a  bar  to  another  suit,  234  -  239. 
{See  Judgment.) 
RESPONDENTIA, 

loans  on,  not  usurious,  414  -41G. 
RESTS, 

annual,  in  merchants'  accounts  allowed,  428,  430,  n.  [x). 
RESTRAINT  OF  TRADE, 

contract  in,  when  void,  253  -  259. 
REVENUE  LAWS, 

have  no  extra-territorial  force,  82,  n.  (e). 

of  other  countries,  contracts  in  violation  of,  not  void,  259,  260. 


S. 
SAMPLE, 

sale  by,  constructive  delivery  in,  so  as  to  satisfy  the  requirements 
of  the  statute  of  frauds,  324. 
SALES, 

of  lands  within  the  statute  of  frauds,  311  -  316. 
of  chattels,  when  within,  319-341. 

{See  Frauds,  Statute  of.) 
of  notes  and  other  choses  in  action  not  usurious,  421  -  427. 
damages  in,  where  the  vendee  sues  the  vendor,  479  -483. 
where  the  vendor  sues  the  vendee,  483  -487. 
where  covenants  in  sales  of  real  estate  are  broken, 
503-507. 
SATISFACTION, 

{See  Payjiext.) 
SEISIN, 

covenants  of,  damages  for  breach  of,  498. 
SERVICE,  CONTRACTS  OF, 

apportionment  of,  32-35,  and  n.  (r7). 
what  amounts  to  a  day's  work,  51,  n.  Q>). 
commission  for  service  not  usurious,  410-414. 
SET-OFF, 

of  demands,  when  allowed,  239,  240. 

of  judgments,  240  -  242. 

of  costs,  241. 

of  amount  due  on  a  bond,  242. 

allowed  only  where  the  party  holds  the  demand  in  his  own  right, 

243. 
of  a  joint  against  a  separate  debt,  and  of  a  separate  against  a  joint 
debt,  not  allowed,  244,  245. 


INDEX.  585 

SET-OFF,  continued. 

of  a  demand  against  the  party,  having  the  equitable  but  not  the 

legal  interest,  24-1. 
unliquidated  damages  not  subject  to  compensation  for  part  perform- 
ance of  a  contract  in  a  suit  for  the  breach  thereof,  whether 
admitted,  246. 
how  distinguished  from  reduction  and  recoupment,  246,  247. 
defence  of,  optional,  247, 

time  when  the  debt  should  be  due  to  be  subject  of,  248. 
right  of,  not  taken  away  by  an  agreement  to  pay  in  a  specific 

way,  248. 
by  a  purchaser  against  a  factor,  248  -  251. 

a  broker,  249. 
by  or  against  a  trustee,  of  money  due  to  or  from  a  cestui  que  trust,  251 . 
may  exceed  the  amount  due  on  the  original  action,  251. 
notice  of,  251. 

right  of  defendant  to  withdraw,  252. 
SEVEKALTY, 

of  contracts. 

(See  Entirety  of  Contracts.) 
SIGNING, 

required  by  the  statute  of  frauds,  285  -  289. 
when  a  letter  amounts  to,  285,  and  n.  (c). 
writing  of  the  agreement  not  sufficient,  285,  286. 
place  of,  287-289. 
when  in  printing  or  pencil,  289,  290. 
by  an  agent,  291,  292. 
by  an  agent  authorized  by  parol,  293,  294. 
SLANDER, 

in  actions  for,  where  other  words  admissible  in  evidence,  453. 
damages  for  rejDetition  of,  whether  recoverable,  457,  n.  (r). 
nominal  damages  when  given  for,  494. 
SPECIFIC  ARTICLES, 

tender  of,  157-168. 

(See  Tender.) 
notes  payable  in,  162-166. 
damages  for  non  payment  of,  490  -  492. 
STAKEHOLDERS  AND  WAGERS, 

rights  of  parties  to  the  deposit,  138,  140. 
illegal  wagers,  139,  261,  262. 
duty  of  auctioneer  as  stakeholder,  139. 
STATES,  COMITY  OF, 

(See  Place,  Law  of.) 
whether  the  States  of  the  Union  are  foreign  as  to  judgments,  119, 

n.O),  123-126,  232,  n.0> 
.    as  to  bansrupt  laws^ 
535,  536. 


586  INDEX. 

STATUTE  OF  FRAUDS, 

{See  Frauds,  Statute  of.) 
STATUTE  OF  LIMITATIONS, 

(See  LiMiTATioxs,  Statute  of.) 
STATUTES  OF  USURY, 

(See  UsuKY.) 
STAY-LAWS, 

when  constitutional,  533  -  535. 
STOCK, 

usury  in  loans  on,  388  -  390. 

damages  in  debt  on  bonds  for  replacement  of,  472,  n.  (&),480,  n.  (?/). 
SUB-AGENT, 

payment  to,  not  valid,  126. 
SUBMISSION, 

(See  AwAUD.) 
SUIT, 

pendency  of  another,  a  defence,  231  -  234. 
SUPPRESSIO  VERI,  273,  274. 
SURETY, 

appropriation  of  payments  for  the  benefit  of,  145. 

•when  the  statute  of  limitations  begins  to  run  against  the  claims  of, 
371. 

damages  in  an  action  by,  461,  462. 

T. 
TAXATION, 

power  of,  whether  alienable  by  the  State,  518,  525,  526. 
TECHNICAL  TERMS, 

meaning  of,  how  determined,  5,  67,  68. 
TENDER, 

when  allowed,  148,  149. 

pica  of,  admits  the  contract,  149. 

effect  of,  149. 

defeated  by  a  subsequent  demand  and  refusal,  157. 

when  made  in  court,  effect  of,  149,  n.  (I). 

to  whom  and  by  whom  to  be  made,  150,  151. 

amount  required,  151,  153. 

at  common  law,  148,  n.  (^),  153,  154. 

by  statute,  153,  154. 

what  constitutes  a,  154,  155,  188,  n.  (fj). 

must  be  unconditional,  155. 

whether  a  receipt  may  be  required  by  the  debtor,  155,  156. 

in  bank-bills,  if  objected  to,  not  valid,  133,  157. 

Of  chaliels,  157  -  IG8.  ^ 

what  acts  amount  to,  157  -  160,  164. 

^^at  profert  necessary,  160. 

must  be  unconditional,  160. 


INDEX.  587 

TENDER,  continued. 

by  or  to  an  agent,  160. 

time  or  place  of,  IGO  -  1G3. 

of  money  or  chattels,  when  the  promisor  may  elect,  1G3. 

of  a  part,  when  the  contract  is  entire,  163. 

on  a  contract  to  deliver,  reasonably  construed,  164. 

at  a  certain  time  or  place,  when  a  contract  discharged  by,  164. 

when  the  property  passes  by,  165-168. 

quality  of  articles  tendered,  168,  n.  (<jr). 
TIME, 

reasonable,  for  performance  of  contract  when  none  is  fixed,  47, 173. 
a  question  of  law,  47,  173. 
by  what  rule  determined,  47,  174. 

for  limitation  of  actions  and  presumption  determined  by  the  lex 
fori,  102-104. 

when  essential  in  the  performance  of  a  contract,  172. 

computation  of,  when  certain  days  are  exclusive  or  inclusive,  15, 
n.  (x),  175-178. 

when  a  suit  may  be  brought  for  breach  of  contract  before  the  ex- 
piration of  the  time  of  performance,  179,  188. 

of  tender,  148,  n.  {g),  153,  160  -  163. 
TORTS, 

promises  to  answer  for  another's,  within  the  statute  of  frauds,  309. 

damages  for,  446  -454,  456. 
TRADE, 

contracts  in  restraint  of,  when  void,  253  -  259. 
TRESPASS, 

when  a  bar  to  a  real  action,  236  -  239. 

for  mesne  profits,  damages  for,  recoverable,  494,  496,  500. 
TROVER, 

when  a  bar,  235,  n.  {u),  237. 

damages  in  action  of,  470  -  477. 
TRUSTEES, 

joint,  payment  to  one  of,  128. 

payment  to,  binds  cestui  que  trust,  128. 

release  by,  when  set  aside,  222. 

set-off  against,  244,  251. 

■fraud  by,  270. 

U. 
USAGE, 

.  in  the  use  of  language,  12,  n.  {q),  48  -  52. 
in  policies  of  insurance  and  bills  of  lading,  48,  n.  (y),  49,  n.  (c), 

50,  n.  (n),  59,  n.  (q). 
in  leases  where  the  custom  is  local,  49,  n.  {z). 
in  delivery  of  goods  by  common-carrier,  49,  n.  (z). 
in  the  remission  of  money  by  an  agent  to  his  principal,  49,  n.  (s.) 


588 


INDEX. 


USAGE,  continued. 

in  the  business  of  banks,  49,  n.  (z). 

of  brokers,  49,  n.  (z). 
when  the  freight  of  money  is  allowed  to  the  master  of  vessel  by, 

49,  n.  [z). 
the  basis  of  the  common  law,  52,  53. 
must  be  established,  uniform  and  general,  53,  54. 
ambiguities  explained  by,  55. 
affixes  to  a  word  a  meaning  different  from  its  common  one,  50, 

51,  55. 
difference  between  custom  and  usage,  55. 
the  existence  of,  a  question  of  fact,  55,  56. 
knowledge  of,  when  a  presumption  of  law,  and  when  to  be  proved, 

56,  57. 
evidence  of  knowledge,  57. 
illegal  customs,  not  admissible,  57,  59,  n.  (q). 
unreasonable  customs  not  sanctioned  by  the  law,  58. 
may  be  excluded  from  a  contract,  expressly  or  by  implication,  58. 
interest  allowed  by,  380,  407. 
how  affected  by  the  lex  loci,  95  -  100. 
USURY, 

What  constitutes,  383  -  385. 

form  of  the  contract,  immaterial,  385,  387. 

burden  of  proof  of,  386,  387. 

in  loans  on  notes,  386. 

in  loans  of  stock,  388  -  390. 

when  the  contract  is  contained  in  separate  instruments,  390. 

laws  against,  how  evaded,  391. 

in  foreign  contracts,  95,  n.  (e),  391,  392. 

the  contract  itself,  to  be  void  for,  must  be  tainted  with,  392-394. 

the  original  contract  may  be  good,  and  the  second  void  for,  392. 

additional  interest  to  be  paid  as  penalty,  not  amounting  to,  393, 

394. 
agreement  for,  not  conclusively  implied  from  acceptance  of,  394. 
Substitute  securities  are  void,  394-  400. 
in  the  inception  of  a  note,  effect  of,  on  the  rights  of  indorsees,  394 

-396. 
in  the  indorsement  of  a  note,  effect  of  on  the  liability  of  the  maker, 

395. 
when  the  new  security  is  purged  from,  396  -'398. 
against  whom  the  defence  of,  may  be  made,  397-400. 
Distinction  beticeen  the  invalidity  of  the  contract,  and  the  penalty  im- 
posed, 400-405. 
when  the  offence  of,  is  complete,  400  -  403. 

how  availed  of  by  the  debtor,  in  suits  at  law  and  in  equity,  403,404. 
recoverable  in  a  suit,  405. 
Accidentally  included  in  the  contract,  405  -  408. 


INDEX.  589 

USURY,  coniimicd.  * 

contract  for,  under  a  mistake  of  fact,  corrected,  405. 
under  mistake  of  law,  illegal,  405,  406. 
by  banks  in  the  calculation  of  interest,  407. 

In  the  discou7it  of  bills  and  notes,  where  the  interest  is  paid  in  ad- 
vance, 408-410. 
charges  for  services,  by  brokers,  bankers,  and  other  lenders,  not,  410 
-412. 
for  the  rates  of  exchange  not,  413. 
deduction  by  the  acceptor  of  a  bill  paying  it  before  maturity,  of  a 

larger  sum  than  the  legal  interest,  not  amounting  to,  413,  414. 
Extra  interest  for  risk,  or  payable  on  contingencies,  not,  414  -  419. 
on  loans  on  bottomry  and  respondentia,  414,  416. 
in  the  purchase  of  annuities  and  rent  charges,  388? 

n.  (c),  416,  417. 
in  loans  depending  on  the  life  of   the  parties,  418. 
in  j^ost  obit  bonds,  418. 
Contracts  in  ichich  the  lender  professes  to  become  a  partner,  when  void 

for,  419,  420. 
In  the  sales  of  notes  and  other  choses  in  action,  421  -427. 
at  less  than  the  nominal  value,  when  good,  421  -  423. 
how  affected  by  the  liability  of  the  indorser  in  default  of  the  maker, 

423-426. 
indorsement  or  making  of  negotiable  paper  for  a  premium,  426, 

427. 
cross-notes  between  parties  at  different  rates  of  interest,  not,  427. 
Compound  interest,  427-  432. 

not  usurious,  427,  428. 
agreement  to  convert  interest  into  principal  when  valid,  428  -  430. 
annual  rests  in  merchants'  accounts  allowed,  436,  n.  (x). 
laws  against,  in  the  several  States,  430,  431. 
how  affected  by  the  lex  loci,  95  -  100. 


V. 

VALUE, 

of  property,  how  measured  in  computing  damages,  468,  469,  471  - 
473,479-482. 

{See  Damages.) 
of  real  estate,  whether  to  be  taken  at  the  time  of  conveyance  or  of 
eviction,  in  assessing  damages  on  real  estate,  499  -501. 
VENDEE, 

damages  in  suits  by,  4  79  -  483. 

in  suits  against,  483-  487. 
VENDOR, 

damages  in  suits  against,  4  79  -483. 
in  suits  by,  483-487. 
VOL.    II.  50 


690  INDEX. 

VINDICTIVE  D.y\IAGES,  ♦ 

(See  Damages.) 


W. 

WAGERS, 

{See  Stakeholders  and  Wagers.) 
when  legal,  139,  261,  2G2. 
WARRANTY, 

damages  for  breach  of,  in  contracts  for  personal  propcrtj^,  457,  n. 

(r),  486,  487. 
for  real  property,  499  -  502. 
WAY, 

right  of,  when  granted  by  implication. 

{See  Real  Property.) 
WIFE, 

domicile  of,  follows  her  husband's,  93,  111,  112. 
capacity  of,  how  affected  by  the  lex  loci,  111. 
payment  to,  as  the  husband's  agent,  127. 
widow's  claim  for  damages  for  detention  of  dower,  496  -  498. 
WILLS, 

construction  of,  12,  n.  {q). 

rule  of  verha  fortius  accepientur  contra  preferen- 

te7n,  does  not  apply  to,  18,  n.  (fc). 
of  repugnant  clauses,  the  later  prevails,  26. 
admissibility  of  parol  evidence  in  construction  of, 
62,  n.  (v),  65,  74,  76. 
distinction  between  patent  and  latent  ambiguities  in,  69,  n.  (s),  72. 
when  extrinsic  evidence  admitted  to  explain,  76  -  79. 
alterations  in,  effect  of,  228,  n.  (n). 
signing  of,  291,  n.  (m). 
WORK  AND  LABOR, 

{See  Service,  Contracts  of.) 
WRITINCx, 

instruments  partly  in,  and  partly  printed,  how  construed  when  the 

written  and  printed  parts  conflict,  28,  29. 
whether  part  payment  to  be  in,  to  take  a  case  out  of  the  statute  of 
limitations,  257. 
{See  Construction,  Frauds,  Statute  of.) 

Y. 
YEAR, 

contracts  hot  to  be  performed  within,  when  within  the  statute  of 
frauds,  316-319. 


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